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A place apart

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Title:
A place apart the judicial interpretation of campus place as a public forum
Creator:
Wonnett, Robert
Place of Publication:
Denver, CO
Publisher:
University of Colorado Denver
Publication Date:
Language:
English
Physical Description:
xxiii, 489 leaves : ; 28 cm.

Subjects

Subjects / Keywords:
Forums (Discussion and debate) -- Law and legislation -- Colorado -- Denver ( lcsh )
Freedom of speech -- Colorado -- Denver ( lcsh )
College campuses -- Colorado -- Denver ( lcsh )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Thesis:
Thesis (Ph. D.)--University of Colorado Denver, 2010. Design and planning
Bibliography:
Includes bibliographical references (leaves 462-489).
General Note:
College of Architecture and Planning
Statement of Responsibility:
by Robert Wonnett.

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Source Institution:
|University of Colorado Denver
Holding Location:
|Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
707488954 ( OCLC )
ocn707488954

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Full Text
A PLACE APART:
THE JUDICIAL INTERPRETATION OF
CAMPUS PLACE AS A PUBLIC FORUM
by
Robert Wonnett
B.S., University of Colorado at Boulder, 1981
M.S., University of Colorado at Boulder, 1987
M.P.A., University of Colorado Denver, 1994
J.D., University of Denver, 1995
A thesis submitted to the
University of Colorado Denver
In partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Design and Planning
2010


2010 by Robert Wonnett
All rights reserved.


This thesis for the Doctor of Philosophy
degree by
Robert Wonnett
has been approved
by
//'/f'/O
Date


Wonnett, Robert (Ph.D., Design and Planning)
A Place Apart: The Judicial Interpretation of Campus Place as A Public Forum
Thesis directed by Professor Jeremy Nemeth
ABSTRACT
This dissertation is a public forum legal case study on the federal court case
Madison v. Wolf (2005) involving a conflict over the exercise of First Amendment
speech rights on the Auraria Higher Education Center (AHEC) campus in Denver,
Colorado. The dissertation involves the content analysis of the Mason v. Wolf case
opinion and similar federal judicial opinions in order to identify how the judicial
interpretations of campus places produce public fora on higher education campuses.
The primary research question of this dissertation is: How do judicial interpretations
of campus place in constitutional law produce public fora on public higher education
campuses in the United States of America?
The purpose of this dissertation is to broaden understanding the Public Forum
Doctrine by creating a Campus Place Public Forum Typology of campus places
judicially interpreted as public forum categories. This research supplements public fora
case law by identifying, describing, and for the purposes of the Auraria campus creating
a visual representation of the campus place-types as public fora on higher education
campuses. The Typology is used to illustrate and transform the abstract concept of
Public Forum Doctrine into concrete descriptions of physical locations, which court


judges interpret as public fora. Further, the Typology is supplemented by photographic
and other descriptive representations to provide a visual representation of campus
place-types that have been classified as public fora on higher education campuses.
This abstract accurately represents the content of the candidates thesis. I


ACKNOWLEDGEMENT
I would like to thank my dissertation committee Dr. Austin Allen, Dr. Hans
Morgenthaler, Dr. Jeremy Nemeth, Dr. Rod Muth, and Dr. Pamela Wridt for their
advocacy, feedback, and patience in my completion of this dissertation. I especially
appreciate the enthusiasm of Dr. Austin Allen to serve as my dissertation chair and Dr.
Jeremy Nemeths willingness to serve as the dissertation chair in the final stage of the
dissertation process. I would also like to acknowledge the contributions of Dr. William
van Vliet, Dr. Sohyun Park Lee, Dr. Joan Draper and Dr. Dwayne Nuzum.
I thank librarians Judith Rice Jones and Rosemary Evetts for their technical
assistance in archival research and sharing their passion for the search for knowledge.
This dissertation has been improved by the editorial support of Mary Patricia Madden,
Charol Messenger, Rachelle Womack, and Tracey McCormick who all provided
valuable insight and technical assistance in the final version of this dissertation. Mary
Patricia Maddens comments, suggestions, and guidance were especially significant
during the writing phase of this dissertation.
To Ann, my wife and closest friend, thank you for the love, support, and
assistance you provided throughout this journey. Your companionship, support, and
assistance made the completion of this dissertation possible.


TABLE OF CONTENTS
Figures.........................................................xviii
Tables..........................................................xxiii
CHAPTER
1. INTRODUCTION....................................................1
Initial Remarks..............................................1
Background of the Study......................................5
Auraria Higher Education Center..........................7
Campus Conflict.........................................11
Litigation: Mason v. Wolf...............................13
Law: Public Forum Doctrine..............................16
Public Forum Analysis:..................................18
Interpretation of Place-Type and Speech Rights..........18
Statement of the Problem....................................20
Campus Space Management.................................22
Campus Safety and Security.........................24
Campus Free-Speech Zones...........................25
Problem Statement Summary...............................26
vii


Purpose of the Study..........................................28
Justification of the Study....................................29
Significance of the Study.....................................30
Auraria As a Case Study...................................31
The Campus As a Multiple Definition of Type of Place......32
The Public Forum Doctrine.................................34
Summary of Research Significance..........................35
Theoretical Model: Place Typing...............................36
Place Typing and Public Forum Analysis....................37
Aspects of Types of Places...........................38
Types of Place Operations............................39
Place-Type Attributes................................40
Place-Type Summary........................................41
Research Questions............................................42
Research Method...............................................43
Overview of the Study.........................................52
Definition of Terms...........................................55
Chapter Summary...............................................57
2. REVIEW OF THE LITERATURE.........................................59
Vlll


Introduction.................................................59
Theories on Place...........................................60
Place and Space..........................................61
Place-Type Literature.......................................68
Material Place-Type......................................69
Physical Character of Material Place...............69
Summary of Material Place..........................73
Imaginal Aspects of Place-Type...........................74
Placemaking: Creating the Imaginal Place...........75
Imaginal Landscapes................................78
The Imaginal Public and Public Space...............83
Summary of Imaginal Aspects of Place...............85
Conceptual Aspects of Place-Type.........................86
Places of Authority: Civic Space...................88
Bonus Space........................................95
The Conceptual Public Place: Public Space..........95
Legal Geography....................................99
Conceptual Place-Type Summary.....................100
Chapter Summary............................................101
3. RESEARCH METHODS...............................................103
IX


Introduction
103
Rationale for Legal Research..................................104
Source of Legal Data: Federal Court Case Law..................105
United States Court System................................107
The Content Analysis Research Method..........................110
Court Case Selection......................................110
Selection Method..........................................112
Classifying Court Cases.............................113
Court Case Analysis......................................114
Place-Type Assessment.........................................116
Benefits of the Research......................................117
Chapter Summary...............................................117
4. AURARIA PLACE-TYPES..............................................119
Introduction..................................................119
Auraria As a Place-Type.......................................120
Auraria As a Material Place...............................122
The Creation of Centralized Government..............130
The Auraria and Denver Street Grid..................132
Auraria Becomes West Denver.........................134
Auraria As a Place of Architecture, Maps, and Markers .137
West Denver As a Imaginal Place Apart.....................143
x


West Denver As a Sense of Place
149
Auraria As a Conceptual Place...........................152
Auraria Campus and Denver Streets..................156
Auraria Malls......................................159
Auraria Campus in Context...................................161
Aurarias Future As a Place-Type............................164
Chapter Summary.............................................166
5. THE CAMPUS AS A PLACE TYPE.....................................169
Introduction................................................169
The Campus as a Material Place-Type.....................170
Campus Design and Representation of Democracy...........172
Campus Design Research and Theories................173
Campus Placemaking and Placemarkers................175
Campus Outdoor Places..............................177
The Imaginal Campus As a Social Place...................179
Collegiate Way.....................................180
The Campus in Perceptual Context........................181
Campus Environment.................................184
Shared Governance As Campus Organizational Type...185
Campus Academic Classification Types...............186
Campus Space Management Categories.................187
xi


Architectural Place-Types.........................188
Campus Place-Type Summary..............................190
6. THE PUBLIC FORUM DOCTRINE......................................191
Introduction...............................................191
The Developmental Phases of the Public Forum..............192
Public Forum and Civil Liberties......................195
Public Forum and Civil Rights..........................197
Principle of Proportionality......................200
Summary of Civil Rights Cases...................202
In Loco Parentis and Student Place.....................204
Summary of the First Phase........................206
Second Phase: The Public Forum Era.........................207
The Concept of a Public Forum..........................207
Public Forum in Judicial Opinions..................... 208
Third Phase: Public forum Categories.......................212
Public Forum Character and Access......................218
Research on the Public Forum...........................219
Chapter Summary............................................220
7. AURARIA CAMPUS AS A PUBLIC FORUM...............................223
xii


Introduction................................................223
Content Analysis of Mason v. Wolf............................226
Comparison to City Sidewalks.............................229
Auraria Campus Place Typing..............................242
Summary.................................................... 245
8. STUDY FINDINGS: PUBLIC CAMPUSES.................................246
Introduction.................................................246
The Campus As a Place Apart..................................247
Access and Visibility........................................248
Invited Campus Speakers..................................248
Newspapers...............................................250
Lawns and Plazas.........................................256
Marches and Parades......................................268
Streets and Sidewalks As Campus Borders..................274
Enclosed and Interior Places.................................280
Building Steps...........................................280
Dormitories..............................................281
Display Cases and Bulletin Boards........................283
Television Stations and Theaters.........................287
Meeting Rooms, Libraries, and Classrooms.................288
Xlll


The Campus As a Public Forum for Student Expression.......291
The Campus As a Forum for Off-Campus Speakers...............307
Designated Public Forum for Off-Campus Speakers.........311
Limited Public Forum for Off-Campus Speakers............324
Public Forum Is Not a Shield for Disruptive Conduct.........348
Judicial Place-Typing.......................................352
Material Boundaries That Create Place...................354
Imaginal Aspects of Place...............................354
Conceptual Aspects of Place.............................356
Campus Place-Types As Public Fora...........................361
Attributes of Place-Typing..................................362
Form: Openness and Visibility...........................362
Use and Function........................................363
Meaning and Purpose.....................................363
Access Restrictions.....................................364
Chapter Summary.............................................365
9. CAMPUS PLACE PUBLIC FORUM TYPOLOGY.............................367
Introduction................................................367
Campus Place Assessment and Typology........................368
Campus Quadrangle As Squares, Plazas, and Malls.........370
Flagpole Area......................................371
xiv


Auraria Memorial Amphitheater
374
Malls and Sidewalks.....................................375
Lawrence Street Mall..............................376
Larimer Street....................................377
Tenth Street Mall.................................381
Campus Parks, Lawns, and Fields.........................383
Ninth Street Historic Park........................384
Lawrence Street Mall Lawn.........................386
North Classroom and St Francis Lawns..............387
Auraria Athletic Fields...........................388
Courtyards and Terraces.................................390
South Classroom Plaza: Courtyard..................391
Plaza Building Plaza: Terrace.....................392
Library Courtyards................................393
North Classroom Patio: Courtyard..................395
Steps and Entrances.....................................396
Dormitories.......................................399
Auraria Roads and Parking Lots....................401
Newspapers, Bulletin Boards, and Display Cases....404
xv


Typology Summary.............................................405
Chapter Summary..............................................406
10. FINDINGS AND CONCLUSIONS.........................................410
Overview of the Study........................................411
Public Forum..............................................413
Problem Statement.........................................415
Research Questions........................................416
Research Purpose..........................................417
Place-Typing Framework....................................418
Research Method...........................................419
Court Cases Analysis and Findings............................421
Content Analysis of Mason v. Wolf.........................422
Content Analysis of Selected Cases........................425
Judicial Interpretation of Campus Place-Types.............427
Supreme Court Public Forum Cases....................429
Campus Architectural Form...........................431
Public Forum Boundaries.............................432
Campus Meanings and Classifications.................434
Policies on the Use of Place Institutional Intent.436
Access by Class of Speakers.........................437
Content and Type of Speech..........................439
xvi


Campus Place Public Forum Typology..................439
Summary of Interpretations..........................440
Conclusions............................................441
Implications........................................442
How Does It Inform Legal Analyses..............442
Visual Representation..........................443
Applicability to Other Campuses................444
Design of Campus Place.........................445
Campus Space Management........................446
Place Identity and Negotiation of Campus Conflicts.447
Limitations of the Research....................449
Recommendations for Future Research.................451
Concluding Thoughts.................................454
APPENDIX
A. SUMMARY OF FEDERAL CASES...................................456
B. INVENTORY OF FEDERAL CASES.................................458
REFERENCES..........................................................462
xvii


LIST OF FIGURES
Figure
1.1 Auraria Campus............................................................8
1.2 Auraria Campus Entrance...................................................9
1.3 The Dimensional Depiction of the Flagpole Area...........................10
1.4 Plaza Building Steps.....................................................11
1.5 Flagpole with Plaza Steps in the Background..............................14
1.6 Place Type Assessment and Public Forum Analysis Model....................46
1.7 Research Methods Diagram.................................................47
3.1 U.S. Judicial System....................................................107
3.2 Map of Federal Courts by Circuit.......................................108
4.1 U.S. Map of Territories.................................................123
4.2 Early Drawing of Auraria Settlement....................................125
4.3 Sketch of Denver Overlooking Auraria...................................127
4.4 Map of Auraria and Denver Streets 1859.................................133
4.5 Larimer Street During Flood May 19,1864................................135
4.6 Sandbom Map............................................................138
4.7 Ninth Street Park......................................................140
4.8 Ninth Street Plaque....................................................141
4.9 Auraria, Georgia Historic Marker.......................................142
4.10 Lawrence Street Houses Near Tenth Street (1890-1900)..................144
XVUl


4.11 Lawrence Street from Eleventh Street (1890-1900)..................... 144
4.12 Aerial View 1933 Cherry Creek Floodwater.............................147
4.13 Lawrence Street Pre 1988..............................................158
4.14 Lawrence Street Post 1988............................................ 158
4.15 Auraria Campus Walkways...............................................160
4.16 Pepsi Center and Auraria Campus......................................162
4.17 DNC on AHEC Campus August 27,2008....................................163
4.18 Rendering of Lawrence Street Pedestrian Mall..........................165
5.1 Campus Open Space......................................................188
7.1 Aerial of AHEC and DP AC...............................................230
7.2 DP AC Galleria and Sidewalk...........................................231
7.3 DPAC Illustration #1..................................................233
7.4 DPAC Illustration #2..................................................233
7.5 DPAC Galleria Entrance and Sidewalk...................................234
7.6 DPAC and Speer Boulevard..............................................235
7.7 Lawrence Street Mall and Speer Boulevard..............................236
7.8 Auraria Sidewalks.....................................................237
8.1 Apartheid Protest UVA Lawn.............................................259
8.2 Apartheid Protest UVA Lawn.............................................259
8.3 Map of Auburn Campus...................................................264
8.4 Auburn Campus Circa 1989...............................................265
xix


8.5 Auburn Campus Circa 2008..............................................266
8.6 Image of Open Air Forum............................-..................267
8.7 Erwin Center and Surrounding Sidewalks................................275
8.8 Erwin Center Street Level.............................................275
8.9 16th and Maple Streets.................................................278
8.10 Aerial View University of Houston....................................293
8.11 Aerial View University of Houston....................................294
8.12 Texas Tech Campus....................................................296
8.13 Texas Tech Campus....................................................297
8.14 UMBC Campus..........................................................303
8.15 The University of Arkansas at Fayetteville...........................317
8.16 Aerial Photograph University of Maryland Campus.....................334
8.17 Stamp Center UM Campus...............................................335
8.18 University of Miami Academic Quad...................................338
8.19 Aerial Image of Vincennes Campus................................... 343
8.20 Public Forum Categories..............................................361
9.1 Auraria Campus Overview................................................370
9.2 AHEC Central Outdoor Venues...........................................372
9.3 Flagpole Area and Emanuel Art Gallery................................373
9.4 Flagpole Area Facing West.............................................373
9.5 Auraria Memorial Amphitheater.........................................374
xx


9.6 Lawrence Street Mall..................................................377
9.7 Larimer Street and Larimer Plaza......................................378
9.8 Larimer Street Entrance...............................................379
9.9 Tivoli Commons........................................................382
9.10 Auraria Lawns, Parks, Greens and Quadrangles........................383
9.11 Image Ninth Street Park.............................................385
9.12 Ninth Street Park...................................................385
9.13 The Central Lawrence Street Mall Lawn.............................386
9.14 North Classroom Lawn and Athletic Fields............................389
9.15 Auraria Campus Athletic Fields......................................389
9.16 Auraria Courtyards and Terraces.....................................390
9.17 South Classroom Building Plaza......................................392
9.18 Plaza Building Plaza................................................393
9.19 Library Courtyard...................................................394
9.20 Library Courtyard...................................................394
9.21 North Classroom Plaza...............................................395
9.22 Plaza Building Steps................................................397
9.23 East Steps at South Classroom Building..............................398
9.24 Image of Campus Village Apartments..................................399
9.25 Alley Between Science Buildings and St. Francis Conference Center...401
9.26 AHEC Campus Map.....................................................402
xxi


9.27 AHEC Campus Parking Map............................................403
9.28 Auraria Campus Place Public Forum Typology.........................408
10.1 Research Model of Campus Place Public Forum Typology...............428
xxu


LIST OF TABLES
Table
1.1 Outline of Dissertation..................................................54
2.1 Multidimensional Place-Typing Framework..................................67
4.1 Auraria Place-Types.....................................................122
5.1 Campus Place-Types......................................................170
6.1 Public Forum Doctrine...................................................193
7.1 Flagpole Place-Type Model...............................................225
9.1 Campus Place Public Forum Typology......................................409
xxm


CHAPTER 1
INTRODUCTION
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of press; or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances. (First
Amendment to the United States Constitution)
Initial Remarks
This dissertation is a public forum legal case study on the federal court case
Mason v. Wolf (2005), which involved a conflict over the exercise of First
Amendment speech rights on the Auraria Higher Education Center (AHEC) campus
in Denver, Colorado. This federal civil complaint, filed by Keith Mason, alleged that
AHEC administrators unconstitutionally violated his First Amendment rights to
exercise his freedom of speech on the Auraria campus when, on April 12, 2002, they
restricted his access and use of the Auraria campus flagpole area.
In response, the campus administrators asserted that they were exercising their
administrative authority to manage the Auraria campus space by restricting Masons
access to the flagpole area. They contended that assigning Mason, as a campus
visitor, to use a free-speech zone on the Auraria campus to exercise his freedom of
speech was within the boundaries of the Time, Place, and Manner provision of the
Public Forum Doctrine of the United States Constitution.


The Mason v. Wolf (2005) case is an example of the conflict over the
interpretation of campus places as public fora for determining where the government
can enforce speech restrictions on higher education campuses. A public forum is a
legally defined type of public place where conflicts between individual speech rights
and institutional speech restrictions are resolved by the judicial interpretation of the
freedom of speech clause of the First Amendment of the United States Constitution
(Stone, Seidman, Sunstein, & Tushnet, 1991). The U. S. Supreme Court defines a
public forum as:
Government owned property, where government restrictions
controlling the time, place, and manner of speech must not be based
on the content of the message, must be narrowly tailored to serve a
significant governmental interest, and must leave open ample
alternatives for communication. (Tribe, 1988, p. 982)
It is important to understand that the definition of a public forum as a
government owned property is not limited to a physical place (Kaplin & Lee, 2006b).
Federal judges have conducted public forum analysis to interpret bus advertising
(Lehman v. City of Shaker Heights, 1974), government employee payroll systems
(Cornelius v. NAACP Legal Defense and Education Fund, 1985), and university
student activities programs (Rosenberger v. Univ. of Virginia 1995) as types of
public fora. The Supreme Court also has ruled that both verbal and non-verbal forms
of expression, including written, visual and symbolic, are constitutionally protected
speech (Stromberg v. California, 1931; Tinker v. Des Moines, 1969). However, that
the freedom of speech is not an absolute individual right, because the government can
2


apply time, place, and manner restrictions on any individuals speech expressed in a
public forum.
The U.S. Supreme Court created the Time, Place, and Manner provision in the
Public Forum Doctrine to allow government administrators to impose reasonable
restrictions on the time when, the place where, and the manner of how speech is
expressed in a public forum (Clark v. Commun. For Nonviolence 1984; Groyned v.
Rockford, 1972). The Court held that assessing the reasonableness of the Time, Place,
and Manner restrictions on speech are based on the nature of a place and the pattern
of the normal activities that occur in that place (Groyned v. Rockford, 1972). The
Examples of the Time, Place, and Manner restrictions on speech include limitations
on the time of day or day of the week, the location and types of places, and the use of
loudspeakers or signs as a manner of how the speech is communicated.
The word place in this dissertation is used to describe a physical location in
the Time, Place, and Manner provision of the Public Forum Doctrine. The Supreme
Court has stated that in order to ascertain what limits, if any, may be placed on
protected speech we have often focused on the place of that speech, considering the
nature of the forum the speakers seeks to employ (Frisby v. Schultz, 1988, p. 479).
The concept of place is also has social meaning as a space that has become embedded
with individual and personal values (Tuan, 1977). Place, as well is considered an
important feature of the campus environment to study, because it is a tangible
expression of the institutional identity (Chapman, 2006, p. xxxi). The campus speech
3


conflicts represent the misunderstanding among these legal, individual, and
institutional interpretations of place.
In this research, I expand on conventional legal research methods to determine
how judges interpret campus place as they seek to balance the constitutional tension
between individual autonomy and institutional authority when resolving freedom of
speech conflicts on higher education campuses. Public forum case law dictates that
the judges examine the character of the place in their public forum analysis (United
States v. Grace, 1983). I used multiple methods of research to identify how public
forum analysis, as a judicial interpretation of a places character, is an assessment of
multidimensional nature of campus-place types.
I used Mark Hall and Ronald Wights (2008) content analysis method to
analyze the content of the Mason v. Wolf (2005) judicial opinion, in order to identify
how Federal Judge Figas interpretation of the character of flagpole area as a campus
place-type produced a public forum on the Auraria campus. In addition to the Mason
v. Wolf case (2005) I analyzed the content of judicial opinions in other similar public
forum court cases involving speech conflicts on higher education campuses. I
compared Judge Figas public forum analysis to the other judicial opinions to identify
to examine how judges interpret the character of campus places to resolve freedom of
speech conflicts on higher education campuses.
In order to identify how judges interpret the character of campus place-types I
incorporated Karen A. Franck and Lynda H. Schneekloths (1994b) place type model
4


in the content analysis method. The place type model corresponds to the public forum
analysis conducted by judges when they use the public forum analysis to interpret
campus place as a type of public fora in their judicial opinions. By incorporating the
two research methods I created a Campus Place Public Forum Typology> to organize
and communicate the relationship between judicially interpreted campus place-types
and public fora. This Typology> is a research method to examine the interpretation of
the character of campus places in public forum judicial opinions as a place-typing
classification process. I use the Typology as both a method and a visual representation
to explain how the social constructions of multidimensional places are incorporated
within the legal interpretations of places in the judicial determination of public forum
categories.
Background of the Study
Higher education campuses in the United States are physical places that are
idealized to represent broad values and meanings beyond their educational purpose.
The campus, as a multidimensional place, is interpreted as a place apart (Stem, 1986),
a utopian place (Campos, 2002), a public space (Christ, 2004; Gumprecht, 2007), the
collegiate way (Rudolph & Thelin, 1990), and shared governance (American
Association of University Professors, 1984). These interpretations of higher education
are symbolized in the buildings and grounds as the genius loci of the campus, which
are the distinctive physical forms that embody the spirit of the place (Norberg-
Schulz, 1980).
5


The most significant symbol of the higher education campus is as a physical
embodiment of democratic principles of individual rights that that are espoused in the
United States Constitution (Gelemter, 1999; Stem, 1986; Turner, 1984). Michael
Dennis, Professor of Architecture at MIT, wrote:
American universities have until recently been among our most
original and poignant models of urban form. Thomas Jeffersons
Academical Village provided an enlightened direction in the early
nineteenth century. Like physical mirrors of the American
Constitution, these campuses projected an image of balanced
reciprocity between the public and private realms, between the ideal
and the circumstantial. (1995, p. 109)
The campus is the physical manifestation of a broad array of meanings and
values that define the campus as a democratic place of collegiality, open inquiry, and
civil debate. The physical features of higher education campuses also symbolize a
place of individual speech rights, which are protected by the First Amendment of the
United States Constitution. In 1967, the U.S. Supreme Court acknowledged that the
college classroom is peculiarly the marketplace of ideas'" (Keyishian v. Board of
Regents, 1967, p. 603).
In 1972, the Supreme Court expanded their association of speech and place
beyond the classroom to the entire campus, by stating that the college classroom,
with its surrounding environs, is peculiarly the marketplace of ideas'" (Healy v.
James, 1972, p. 180). The Court use of the term marketplace signified their
interpretation that the campus is distinctly the type of place where the freedom of
speech is protected by the First Amendment of the United States Constitution.
6


However, the Court also held that the right to engage in speech activities on campus
is not superior to engaging in speech activity on other types of public property. The
Court asserted that the same reasonable time, place, and manner freedom of speech
restrictions imposed in the community can be applied on a higher education campus.
The exercise of speech rights on campuses also can generate complaints when
an individuals speech disrupts campus activities or is specifically intended to offend
others in the marketplace and to provoke debate in campus public places. The campus
becomes a place of constitutional conflict when individual First Amendment speech
rights are constrained by institutional speech restrictions in managing the
marketplace. The speech restrictions are challenged, at times, in court by individuals
asserting that the speech management policies have violated their individual speech
rights that are protected by the First Amendment of the U.S. Constitution. The
Auraria campus is an example of a campus where a public forum was produced based
on a constitutional dispute over speech restrictions that were challenged in federal
court.
Auraria Higher Education Center
The Auraria campus opened in 1976 and soon became the largest campus in
the State of Colorado (Abbott, 1999). The Auraria campus is state owned property
surrounded by Denver streets (Figure 1.1). This campus is located west of the
Denver downtown business district; the campus buildings and grounds are located
primarily within the street boundaries of Speer Boulevard to the east, West Colfax
7


Avenue on the south end, First Street on the west side, and the Auraria Parkway on
the north side.
Figure 1.1 Auraria Campus
(Courtesy Google Earth)
8


The Auraria campus buildings, services, and grounds are centrally managed
by the Auraria Higher Educational Center Administration Services (AHEC). AHEC is
a unique higher education urban campus where the University of Colorado Denver,
Metropolitan State College of Denver, and the Community College of Denver all
share facilities and services (Figure 1.2). The Auraria campus combined population
from the three academic institutions of 31,890 students is the largest student body of
any higher education campus in Colorado. One of every five students in Colorado
attends one of these three institutions.
Figure 1.2 Auraria Campus Entrance
(Photograph by author)
9


The Auraria campus is comprised of several major sidewalks and plazas that
form the open campus places. The intersection of the Tenth Street Mall and Lawrence
Street Mall forms a plaza in the center of the Auraria campus. A single flagpole is
located approximately 30 feet east of this plaza. It is one of the few landmark features
in the plaza, formed by the intersection of two main sidewalks in the pedestrian core
of the campus (Figure 1.3). The Lawrence Street Mall, a pedestrian walkway in the
center of the Auraria campus, is the type of campus space where conflicts may
emerge between individual autonomy and institutional authority over speech rights.
Figure 1.3 The Dimensional Depiction of the Flagpole Area
(Courtesy Google Earth)
10


Campus Conflict
The flagpole area was the site of a confrontation on Friday morning, April 12,
2002, between the AHEC staff and Keith Mason and his companions, known as
Survivors of the Abortion Holocaust. A week earlier, Masons group had initiated
telephone and email communications with Dick Feuerbom, AHEC Director of
Facilities Planning, to request a high traffic area (Mason v. Wolf, 2005, p. 1154)
where they could conduct their First Amendment activity (Complaint, 2003, p. 6).
The Mason group arrived on the Auraria campus at approximately 10 a.m. to
disseminate literature, display placards, and converse with passersby about the issues
of abortion (Plaintiffs, 2004, pp. 1-2). Feuerbom directed Mason and his followers to
use the steps of the Plaza Building for their speech activities (Figure 1.4).
Figure 1.4 Plaza Building Steps
(Photograph by author)
11


Feuerbom chose the Plaza Building location because an unwritten AHEC
policy required off-campus groups to conduct their speech activities on the Plaza
Building steps or at the amphitheater in front of the Plaza Building. Feuerbom had
created this ffee-speech zone because he was concerned about potential violence
after incident by another pro-life group had dismpted pedestrian traffic around the
flagpole (.Mason v. Wolf, 2005, pp. 1160-1161). Feuerbom, therefore, instructed
Mason and his followers to remain within a fixed area on and around the Plaza
Building steps, located along the Lawrence Street Mall, approximately 130 feet west
of the flagpole area, while conducting their speech activity (Plaintiffs, 2004).
Mason and several followers began to walk to the flagpole area after two
hours, because they perceived that the free-expression zone was not a popular
location to communicate their message to pedestrians (McPhee, 2005). The Mason
complaint stated that, after the two hours, Mason had noticed that not more than
thirty students walked through the Plaza Building area, but that hundreds of students
had walked through the flagpole area (Mason Complaint, 2003, p. 7). Mason also
stated that he thought they could use the flagpole area since they had seen an
individual handing out flyers there (McPhee, 2005).
Feuerbom stopped the group and ordered them to return to the Plaza Building
steps. Mason questioned why his group was being restricted to this location while
another person was being allowed to use the flagpole area for speech activity {Mason
v. Wolf, 2005). Feuerbom explained the individual was a member of a campus student
12


group; that since the Survivors of the Abortion Holocaust did not have the same
status, they were not permitted to use the flagpole area to hand out their flyers (Mason
v. Wolf, 2005). Mason refused Feuerboms order to return to the Plaza Building steps
and was arrested by an AHEC police officer for violating Colorado Revised Statutes
§ 18-9-117(3)(b) unlawful conduct on public property (Mason v. Wolf 2005).
AHEC police initially placed Mason in the Auraria campus police holding cell and
ultimately transferred him to the Denver City Police lockup (Mason v. Wolf, 2005).
Mason bonded out of jail after a few hours; the AHECs criminal charges against him
were dismissed days after his arrest, at the request of the Denver District Attorneys
Office (Mason v. Wolf 2005).
Litigation: Mason v. Wolf
This confrontation over use of the flagpole area at Auraria campus developed
into a federal court case involving the First Amendment of the United States
Constitution, when Mason filed a 42 U.S.C. § 1983 Civil Rights violation lawsuit in
the United States District Court for the District of Colorado on March 4, 2003. The
federal law cited in Masons complaint is 42 U.S.C. § 1983 Civil action for
deprivation of rights under the Civil Rights Law. The law states in part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress... (42 U.S.C. §1983, 1871)
13


The complaint stated that AHEC officials had refused to allow Mason to
engage in expressive First Amendment activity outside of a certain designated area on
a public campus for higher education (Complaint, 2003, p. 2). Keith Mason
interpreted the flagpole area (Figure 1.5) as a traditional public forum where he could
exercise his First Amendment speech rights (Mason Complaint, 2003). Mason and the
AHEC administrators all had similar observations of the physical form of the flagpole
area, but they disagreed in their interpretations of the character of the campus place
as a type of public forum.
Figure 1.5 Flagpole with Plaza Steps in the Background
(Photograph by author)
14


In his Complaint, Mason described the historic landmarks, open nature of the
campus, location in the Denver business district, and park like features of the flagpole
plaza. The Complaint asserted that the AHEC officials at least had created a
designated public forum allowing students and non-student groups to engage in
expressive activities at the flagpole area (Mason Complaint, 2003 p. 8). Mason
stated in a newspaper article: I believe the purpose of a college campus is to
exchange ideas between students and the community (McPhee, 2005). Furthermore,
Mason accused AHEC of violating his Fourth Amendment rights by unlawfully
seizing and arresting him without probable cause.
The Office of the Colorado Attorney General, representing the Auraria
campus, argued in court filings that the flagpole area is a non-public forum (Mason
Answer, 2003). AHEC declared that the flagpole area is not a public park and is
certainly not a public street or sidewalk (Mason Dismiss, 2003 p.5). The AHEC
pleadings contended that the Auraria campus mission is to provide services for the
campus community, not off-campus groups. AHEC also asserted that Mason did not
have an ongoing relationship with the Auraria campus and, therefore, had no reason
or authority to be on campus without AHECs permission.
Masons interpretation of the Auraria campus as an open place for exchanging
ideas was in stark contrast to AHECs interpretation that the campus is a closed
location meant to serve only the campus community. These disparate interpretations
of the flag pole area are an example of how individuals observing the same physical
15


place may create conflicting descriptions of the location. D. W. Meinigs (1979)
landscape essay titled The Beholding Eye describes how conflicting interpretations
of material places are common occurrences in society because any landscape is
composed not only of what lies before our eyes but what lies within our heads (p.
34). Meinig (1979) explains that the central problem in the differing interpretations is
based on a failure to communicate a subjective analysis of the values and meanings
that people link to material places. Masons and the AHEC administrators conflicting
interpretations of the flagpole area, as a public forum category, ultimately was
decided by Federal Judge Phillip S. Figa, who linked his interpretation of the values
and meanings of the flagpole area to the freedom of speech provisions of the First
Amendment of the United States Constitution.
Law: Public Forum Doctrine
Judge Figa presided over the Mason v. Wolf (2005) case in a bench trial that
lasted from February 7 to February 9, 2005; he released his findings of fact and
conclusion of law on February 15, 2005 (Mason v. Wolf 2005). Judge Figa
interpreted the character, history of use, and physical design of the flagpole area in his
public forum analysis, and rejected both Masons and AHECs interpretations of the
flagpole area. The judges analysis of the public forum included viewing photographs
of the flagpole area and a site visit to the area on February 8, 2005 with members of
the plaintiff and defense teams. The judge concluded in his public forum analysis that
16


it seems quite apparent that the flagpole area fits the description of a designated
public forum" [italics mine] {Mason v. Wolf, 2005, p. 1159).
A designated public forum is a property the government has opened for
expressive activity, treating the property as if it is a traditional public forum {Mason
v. Wolf 2005). The designated public forum classification had allowed AHEC
officials to establish Time, Place, and Manner restrictions on expressions in the
flagpole area. These types of restrictions, constitutional when narrowly tailored to
serve a significant government interest, leave open ample alternative channels of
communication. However, Judge Figa ruled that AHEC officials had lacked
significant justification to deny Mason, as an off-campus visitor, use of the flagpole
area to exercise his constitutionally protected speech rights under the First
Amendment {Mason v. Wolf 2005).
In addition, Judge Figa ruled that Feuerbom, as a campus administrator, was
on fair notice based on the Tenth Circuit and Supreme Court public forum case law
that his conduct in precluding plaintiffs from demonstrating at the flagpole area, at a
minimum a designated public area, violated their clearly established constitutional
rights under 42 U.S.C. § 1983 of the Civil Rights Act {Mason v. Wolf 2005, p.
1165). The judge denied Feuerboms defense of qualified immunity and awarded
Mason $2,000 in damages against Feuerbom for his actions in denying Masons First
Amendment constitutional rights {Mason v. Wolf, 2005, p. 1165). This case, as I
17


stated in the Introduction is an example of the legal implications that result from
differences in the interpretations of campus places as public fora.
Public Forum Analysis:
Interpretation of Place-Type and Speech Rights
The Auraria campus contains buildings, sidewalks, plazas, streets, and
courtyards that constitute different types of campus places, which represent different
types of public fora. The material features of the flagpole area were narrowly
interpreted by the AHEC staff as a non-public forum, based on the physical form of
the place. The same place was interpreted by Mason as a traditional public forum,
based on his impression of the flagpoles function as a marketplace where he could
exchange ideas between his group and Auraria students. In contrast to the other two
interpretations, Judge Figa interpreted the overall character of the flagpole area as a
designated public forum based on his public forum analysis of the conceptual aspects
of the area. The judges interpretation ultimately resolved the legal conflict between
the AHEC staff and Mason by establishing the location and level of speech rights that
are constitutionally protected in the flagpole area on the Auraria campus.
The Mason case and Judge Figas opinion are examples of how the Public
Forum Doctrine is used by federal judges to interpret place-types as locations of
individual speech rights on higher education campuses. The Public Forum Doctrine
evolved out of judicial analysis of the First Amendment clause to protect speech
rights of individuals on public property. Over time, the Supreme Court and lower
18


federal courts have expanded the Public Forum Doctrine to classify public places as
traditional, designated, limited, and non-public fora categories, when interpreting a
type of public property that is sought for exercising individual speech rights (Perry
Education Ass'n v. Perry Local Educators' Ass'n, 1983). Each of the public forum
categories defines constitutional standards on the governmental authority to restrict
speech, while defining the protection of individual speech rights on public property.
The constitutional standards of Time, Place, and Manner speech restrictions
apply to all public property, including that identified as a non-public forum, which the
Supreme Court has identified as no forum at all (Ark. Educ. Television Comm n v.
Forbes, 1998, p. 678). According to legal scholar Lawrence Tribe (1988), The
public forum represents areas within which tolerance for inhibitions on speech,
petition, and assembly is at a minimum and governments burden of justification at its
highest (p. 684). Public forum categories are place-types that identify levels of
speech rights on public property; whereas, the Public Forum Doctrine is a
constitutional doctrine that is not applied to speech conflicts on private property.
Judge Figas classification of the Auraria campus flagpole area as a
designated public forum is an example of how court interpretations actively produce
space through court decisions (Blomley, 1994, p. 45). The judges court opinion
includes public forum case law to identify how he interpreted the flagpole area as a
designated public forum. Moreover, his judicial opinion as case law was a limited
19


means to communicate fair notice on how the flagpole area is judicially interpreted
as a designated public forum on the Auraria campus.
Judge Figas public forum classification in the Mason v. Wolf (2005) case
applied specifically to the flagpole areas as only one type of place on the Auraria
campus. The public-forum classification of other places on the campus as public fora
and other campus places across the country, in general, is not easily determined by
reading one public forum case. Judge Figas opinion does not specifically identify the
boundaries of the designated public forum around the flagpole area, nor does it
distinguish the public forum status of the other types of places on the Auraria campus.
Statement of the Problem
The United State Supreme Court has established the Public Forum Doctrine as
a legal precedent in constitutional law'. However, differences in the interpretations of
campus place as public fora have generated confusion over locations where First
Amendment speech rights are constitutionally protected on public higher education
campuses. The speech-conflict litigated in Mason v. Wolf (2005) is an example of the
confusion over the interpretation of campus place-types as public fora on higher
education campuses.
The confusion and differences over where campus place-types correspond to
public forum categories has not been addressed in a comprehensive judicial decision.
The judicial interpretations of different campus place-types vary across the federal
circuits based on the different campus place-types where speech conflicts occur on
20


higher educational campus. Individuals and institutions that are clarifying the public
forum category of a campus place-type must synthesize a multitude of public forum
judicial opinions to determine the public forum category of different place-types.
The conflicting interpretations over campus place-types as public fora and the
time, place, and manner restrictions on speech on higher education campus can
ultimately result in the filing of a civil complaint in federal court. The complaint is
filed by an individual or individuals alleging that the educational institution has
violated their constitutional rights. Eventually the civil complaint is decided, in part,
by the judicial interpretation of campus place-types to produce public fora on higher
education campuses.
Case law analysis is the only option available to forecast how a judge will
interpret a campus place-type as public fora to settle or negotiate a campus speech
conflict. The federal judicial system is based on adjudicating legal disputes in court
with the resulting decision serving to produce constitutional standards as case law.
The case law standard does not afford individuals or institutions the opportunity to
resolve disputes by presenting a judge a real or hypothetical scenario to determine
how a court would rule in a dispute. Federal courts do not provide guidance to a
speech conflict unless it is presented to the court in a legal filling nor do they address
hypothetical legal conflicts in their court case decisions. The current public forum
case law does not provide a specific typology or standard on how campus place is
judicially interpreted as public fora. The lack of a standard objective description
21


results in confusion and conflicts over where individuals can exercise their freedom
of speech rights on higher education campuses. The lack of a guide to understand
how judges interpret campus place as public fora in constitutional law has significant
consequence in the individual use and institutional management of campus places. A
Typology that identifies and illustrates the judicial interpretations is an important
reason to classify and inventory campus place-types as public fora in order to address
the significant legal implications in the use and management of campus place.
Campus Space Management
The lack of a place-typing method to identify the judicial interpretation of
campus place as public fora makes it difficult for campus administrators to determine
whether their management of campus space is within the constitutional standards of
the Public Forum Doctrine. The management of campus space is considered one of
the most important responsibilities in higher education administration (Knowles,
1970). Campus space symbolizes internal pressures, as well as external constraints
that shape the growth of a comprehensive university (Compton, 2000; Lanier, 1968),
because contemporary campuses are managed in increasingly complex legal
environments (Bickel & Lake, 1999).
Courts did not general apply prevailing constitutional protection of individual
rights to higher education students until the 1960s when court decisions began
shifting the legal principle of higher education attendance from a privilege to a right
(Kaplin & Lee, 2006a). Following the 1960s, the emerging theory of public space
22


(Nadal, 2000), the free-speech movement (Sanford, 1985; Tigar, 1966), and the
Public Forum Doctrine (Bausch, 1995; Travis, 2000) began to influence the courts
deference to unchecked authority for campus administrators to manage students,
speech, and space on public higher education campuses (Forbes, 2001). The legal
wall separating the higher education campus from the Constitution continued to erode
during the 1970s, when numerous social developments challenged campus
administrators management of restricting speech expression and activities on higher
education campuses, including: widespread student protest (Knowles, 1970; Miser,
1988), the demise of in loco parentis (Altschuler & Kramnick, 1999; Stamatakos,
1990; Zeiner, 2005), and the passage of the Twenty-sixth Amendment to the United
States Constitution (which lowered the voting age to 18). As a result, in 1972 the
Supreme Court opined:
Colleges and universities are not enclaves immune from the sweep of
the First Amendment.... The precedents of this Court leave no room
for the view that, because of the acknowledged need for order, First
Amendment protections should apply with less force on college
campuses than in the community at large. (Healy v. James, 1972, p.
279)
The Supreme Court confirmation that individuals are able to retain their
constitutional rights when entering campuses is balanced against the control of
campus operations to preserve the campus mission and provide for the safety of the
campus community.
23


Campus Safety and Security
Campus administrators face legal challenges to maintain the integrity of the
campus mission and sense of place. For example, campus shootings at the University
of Northern Illinois (Weekly, 2008), Louisiana Technical College (Dyer, 2008), and
Virginia Tech (Davies, 2008; Earls, 2002; Kingsbury, Brush, Green, & Schulte, 2007)
have heightened campus safety concerns across the country. Anxiety over campus
shootings, combined with concerns about possible terrorist attacks (Dyer, 2000;
Farrell & Fuller, 2003; Yeager & Fields, 1999) and personal safety (Sells, 2002), has
challenged administrators to maintain legally safe and secure campus environments;
while, at the same time, to preserve institutional values of open access and to protect
individual liberties in a democratic society (Halcom, 2008). Higher education
institutions that fail to take appropriate steps to address safety and security concerns
face legal lawsuits (Foster & Lipka, 2007), government fines (Herrmann, 2008;
Lipka, 2008), threats to their reputation (Murphy, 2003), and decreased student
enrollments (Hatley, 2007; Kelsay, 2007).
Preserving institutional values of open access and individual liberties is still
expected of campus administrators in managing their campuses (Halcom, 2008).
Critics assert that space management approaches to increasing campus security
actually erode the academic climate and diminish the exploration of ideas on higher
education campuses (Harward, 2007). The constitutional requirements to uphold
public forum standards require campus administrators to maintain their constitutional
24


responsibility to protect both individual First Amendment rights, while at the same
time balancing institutional campus safety. The approach by campus administrators
to achieving this balance is to segregate conflicting activities into different places on
campus.
Campus Free-Speech Zones
Campus administrators respond to conflict over the use of campus space by
implementing free-speech zones and restricting specific activities in campus spaces
(Silverglate & Gewolb, 2002; Zeiner, 2005). The administrators have created other
types of zones, including: bicycle dismount zones for pedestrian safety (Pinney,
1992), no smoking zones to promote a healthy environment (Abuse, 1993), dog
leash zones for animal control (Brottman, 2004), surveillance zones for crime
detection (Young, 2003), auto free zones for pedestrian safety (Marcus, 2001), and
gun free zones for campus safety (Street, 2001).
Beyond any other type of zone or restriction, administrators face the greatest
number of challenges from students and visitors in their effort to create campus free
speech policies and free-speech zones (Hendrickson, 1991; Knight, Maloney, Snyder,
& Bradley, 2005; Zeiner, 2005). Speech policies pose specific problems in space
management on higher education campuses when restrictions over public speech
unconstitutionally violate an individuals First Amendment rights (Knight et al.,
2005; O'Neil, 1997).
25


Campus administrators have been sued successfully for violations of the First
Amendment of the U.S. Constitution when campus free-speech zones or speech
policies unconstitutionally have violated an individuals First Amendment rights
(Davis, 2004). As a result, campus administrators who lack sufficient understanding
of the Public Forum Doctrine and the United States Constitution may respond to a
freedom of speech conflict with an unconstitutional action that restricts individual
speech rights and results in a federal lawsuit.
Problem Statement Summary
The conflicts over speech on higher education campuses exemplifies John
Stuart Mills (1956) principle argument in On Liberty that a civil society always
has had to negotiate the struggle between individual liberty and social authority.
According to Mill (1956), the measure of social liberty is defined by the nature and
limits of power legitimately exercised by society over the individual. Similarly, I
assert that the judicial interpretations in public forum cases are a gauge of how judges
negotiate the protection of individual liberty with institutional authority in the
management of the campus. In these cases the nature and limits of the institutional
power over the individual is represented in the campus as a multidimensional type of
place.
The judicial interpretation of physical place as public fora on higher education
campuses is not clearly illustrated or identified in court cases. Furthermore,
traditional campus space management guidelines developed in the 1960s, to promote
26


efficient use of operational space (Derx, 1987), were not designed to address
managing spaces classified as public fora on higher education campuses throughout
the United States. The absence of descriptions and visual representations of campus
places classified as public forum categories has resulted in confusion and conflicts
over the individual and institutional interpretation of where individual rights of
expression are protected by the First Amendment on higher education campuses.
Judge Figa admonished Feuerbom for his lack of knowledge of current
interpretations and constitutional standards for protecting individual speech rights in
public forum case law, based on the Tenth Circuit and Supreme Court public forum
case law. The failure to remain knowledgeable of fair notice and public forum case
law is an example of why it is important for campus administrators continually to
scan public forum case law and literature, so they may remain knowledgeable of
prevailing constitutional standards of individual speech protections and institutional
speech restrictions that are constitutionality allowed in public fora.
The difficulty for individuals and administrators is determining how judges
interpret the character of campus place-types as public fora. The Public Forum is a
complex legal doctrine that is still evolving, based on constitutional conflicts as well
as conflicts over interpreting speech rights for a place as either public property or a
government institution. The differences in interpreting campus place have generated
different constitutional standards of speech rights on higher education campuses.
27


Interpretations of campus places are not aided by a comprehensive public fora
place-typing system, which can reduce conflict over interpretations of the campus as
a type of place and the place-types within the campus boundaries. An objective place-
typing system can identify values and meanings associated with different expectations
of constitutional standards for speech rights in public places on higher education
campuses. Therefore, the problem addressed in this dissertation is the need for a
Campus Place Public Forum Typology for individuals and institutions to
systematically type the locations and levels of constitutional speech rights by campus
place-type based on a case study of the judicial interpretations of campus places as
public fora.
Purpose of the Study
The purpose of this dissertation is to broaden the laymens understanding of
the Public Forum Doctrine, by creating a typology of campus places judicially
interpreted as public forum categories. The conflicts and judicial opinions over
exercising speech rights on campuses do not result in a demarcation of physical
boundaries for identifying the border between individual liberties and institutional
authority.
This research supplements public fora case law by identifying and describing
campus place-types as public fora on higher education campuses. The Public Forum
Doctrine may appear as an abstract construct to individuals reading case law on
judicial interpretations of campus places; therefore, I designed a Campus Place
28


Public Forum Typology that describes where campus place-types are interpreted as
public fora categories in public forum analysis. I used this Typology in illustrating and
transforming the abstract concept of Public Forum Doctrine into concrete descriptions
of physical locations, which court judges interpret as public fora. Further, I
supplemented the Typology with photographic and other descriptive representations
to provide a visual representation of campus place-types that have been classified as
public fora on higher education campuses.
Justification of the Study
Speech conflicts on public places have generated substantial case law and case
law research on the application of and policies regarding constitutional protections of
individual expression on public property. Any violation of these constitutional rights
subjects government officials to challenge under Federal Law 42 U.S.C. § 1983 Civil
action for deprivation of rights ("Civil Rights Act," 1871). Judge Figas decision to
award Mason personal damages against Feuerbom emphasizes the importance of
campus administrators developing awareness of the prevailing constitutional
standards of the Public Forum Doctrine.
The evolution of the public forum through court rulings and changing social
conditions has generated multiple interpretations of campus place as public fora
categories on higher education campuses. Judicial interpretation in public forum
opinions may vary significantly in application of public forum analysis and ultimate
determination of public fora categories. The Mason v. Wolf (2005) case is an example
29


of confusion when interpreting campus place-types as different types of public fora.
Therefore, I conducted research on campus speech policies on how the First
Amendment and Public Forum Doctrine have been applied on higher education
campuses.
To date, there is little research on how judicial interpretations of campus place
on higher education campuses produce public fora. My research method of analyzing
and comparing the content of different judicial opinions will identify and describe
how judges conduct place-typing assessments of campus places in their public forum
analysis in the selected public forum court cases. This is the first study to use a place-
typing model in combination with content analysis of judicial interpretations of
campus places for examining how public forum decisions vary across the country.
Significance of the Study
This research examined the relationship between campus physical places and
constitutional speech rights. The Mason v. Wolf (2005) court case is a foundation for
studying the Auraria higher education campuses as a case study of how the character
of campus place-types are interpreted judicially as categories of public fora on higher
education campuses across the county. The Campus Place Public Forum Typology
that I create in this research provides institutions and individuals an objective place-
typing method to understand and forecast how a judge will interpret the character of a
campus place as public fora in a speech dispute. The judicial interpretations of
campus place are not standardized in the federal circuits; however the Typology
30


provides a place-typing method to identify how judges interpret campus place-types
as public fora. The Typology is also designed to apply the campus place-typing
model to any public higher education campus in the United States.
An additional significance of this research is the use of photographs and
images of campus place-types as visual representations of the public forum
categories to supplement the Campus Place Public Forum Typology. The Typology
uses visual representations to illustrate and map campus place-types as public fora.
The campus place-type models and the Campus Place Public Forum Typology
developed in this research broadened the understanding of how and where campus
place-types are interpreted as public fora based on judicial interpretation of campus
place in different federal circuits across the country. Each of the public forum
categories proscribe constitutional standards for institutions to manage publicly
owned resources and individual rights for using those resources. The visual images
will assist campus administrators and individuals in identifying how campus place-
types are interpreted as public fora on different campus across the United States.
Auraria As a Case Study
This case study examined the Auraria campus regarding the exercise of First
Amendment rights on public higher education campuses, as well as the legal
implications of judicial interpretation of campus place for determining public forum
categories. Judge Figas examination of the flagpole areas character reflects the
importance of assessing campus place-types when determining public forum
31


categories. I examined the history of Auraria as a type of place to identify the
dominate institutions and social factors in the flagpole areas transition as a city
sidewalk, campus plaza, and designated public forum.
The Auraria campus has a contextually rich history that is unique among
public higher education campuses in the United States. The history of the Auraria
location is an intriguing backdrop for inspecting critically relevant features regarding
the application of public forum for higher education campuses. What makes the
Mason v. Wolf (2005) court case so interesting is the question of how the Auraria
campus compares in history and character to other higher education campuses across
the U.S. The Mason v. Wolf (2005) judicial opinion as a legal place-typing process
provides insight into the continual development of the Auraria as a type of place and
flagpole area as specific place-type. This is the first case study on the Auraria
campus that examines the different transitions and interpretation of the flagpole area
as a place-type based on the production of Auraria as a multidimensional place. This
research will examine the different transitions and interpretation of the flagpole area
as a place-type as a city sidewalk, campus plaza, and designated public forum.
The Campus As a Multiple Definition of Type of Place
The word campus is Latin for field (Latin/English, 2002). Campus was first
used to describe the grounds of a college in a letter written in 1774 by a College of
New Jersey student. The students letter described a protest by fellow students against
English rule: Last week to show our patriotism, we gathered all the stewards winter
32


store of tea, and having made a fire in the Campus, we there burnt near a dozen
pounds, tolled the bell and made many spirited resolves (as qtd. in Leitch, 1978, p.
74).
Since the late 1700s the definition of the word campus has expanded from a
field into a multidimensional concept of physical, social, and organizational
systems that interact simultaneously to create and maintain a distinctive learning
environment (Strange & Banning, 2001). Contemporary definitions of campus
include: (a) grounds and buildings of a university, college, or school; (b) a university,
college, or school viewed as an academic, social, or spiritual entity; and (c) grounds
that resemble a campus, hospital campus, or landscaped corporate campus (Merriam-
Webster, 2004). I examine the multiple definitions of the campus as a physical,
social, and an organizational place in order to identify the evolution of the character
of the contemporary higher education campus.
This research is structured to examine and identify how the judicial
interpretation of the campus as a multidimensional place when the public forum
analysis is applied to higher education campuses. The research questions are designed
to examine how courts balance the ideal and real images of the campus as a type of
place to ensure that individual First Amendment rights are not unconstitutionally
suppressed on higher education campuses in the United States of America.
33


The Public Forum Doctrine
The constitutional question in Mason v Wolf (2005) was legally decided by
Federal Judge Phillip S. Figas public forum analysis of AHECs authority to impose
Time, Place, and Manner speech restrictions on the use of the flagpole area on the
Auraria campus. Judge Figas judicial interpretation of the flagpole area as a
designated public forum overruled both Masons and AHECs interpretation of the
campus place-type. The judges public forum analysis included his interpretation of
the character of the flagpole area, determining that it was apparent that the flagpole
area fits the description of a designated public forum category. The public forum
analysis process that the judge conducted is a legal place-typing inquiry that
ultimately interprets public places as public fora within the Public Forum Doctrine.
The Public Forum Doctrine evolved out of judicial analysis of the First
Amendment clause to protect speech rights of individuals while on public property.
Over time, the Supreme Court and lower federal courts have expanded public forum
analysis to classify public places as traditional, designated, limited, and non-public
fora categories when interpreting the type of public property sought for
communicating individual expression. Each of these public forum categories defines
the legal regulations on the institutional authority to manage public property, as well
as levels of protection of individual rights of public expression.
In addition, federal courts have analyzed the character or nature of place,
including but not limited to: (a) traditional use of the property (Hague v. C.I.O.,
34


1939), (b) character of the property at issue {Perry Education Ass'n v. Perry Local
Educators' Ass'n, 1983), (c) pattern of normal activities (Groyned v. Rockford, 1972),
and (d) organizational nature of the forum {Cornelius v. NAACP Legal Defense and
Education Fund, 1985) when interpreting the type of public place as a category of
public fora. This research expanded recognition of how public forum analysis of
campus places, as public fora, is a process of interpreting and typing campus places as
locations where rights of freedom of speech rights and restrictions are balanced
within the First Amendment of the United States Constitution.
Summary of Research Significance
The location where constitutional speech rights are protected, or restricted, in
the use of public property is confusing for lawyers as well as lay people. Examining
public fora as place-types is an innovative approach to identifying and describing the
locations where speech rights that are represented as multidimensional places on
higher education campuses. Thus, this research clarifies the public forum as an
abstract concept of constitutional law, and provides a physical description of campus
place-types as public forum categories. The results reduce confusion on how Time,
Place, and Manner speech restrictions are applied within constitutional regulations
meant to ensure that individual First Amendment rights are not suppressed
unconstitutionally on college and university campuses in the United States of
America. This research examined how judicial interpretation of campus places in
public forum analysis is a place-typing method in constitutional law.
35


This dissertation significantly expands the study of place as a legal
multidimensional physical location. Research on campus place-types as public fora
provides a research method for advancing public forum analysis as a concrete method
of place-typing, rather than as an abstract legal concept. This method provides to
professionals, who create campus places, a post-occupancy analysis of how places are
interpreted by court judges as legal places subject to constitutional regulations. For
future research, the Campus Place Public Forum Typology also can serve as a model
to compare public forum analysis of campus place-types to non-campus places.
Theoretical Model: Place Typing
Franck and Schneekloths (1994b) model of place-type is the primary
theoretical model used in this dissertation research. They explained that human
beings structure environments by creating and using a multitude of categories of
places and spaces, often called types (1994a, p. 9). The place-types model
corresponds to the public forum analysis conducted by judges when they determine
the type of public forum categories in their judicial opinions. The purpose of place-
typing assessments is to uncover the social relationships that intersect within places
and to expose underlying power relationships within the physical location (Franck,
1994). I combine the place-typing model with the content analysis of judicial
opinions to examine how judges interpret the character of multidimensional campus
places in their public forum analysis as a legal assessment of place-types. I will use
36


this research to identify and illustrate the location and level of constitutionally
protected speech rights by the character of campus place types.
Place Typing and Public Forum Analysis
The term place in the Public Forum Doctrine is associated with the legal
theory of property, which is defined as any external thing over which the rights of
possession, use, and enjoyment are exercised (Blacks Law Dictionary, 2009, pp.
1335-1336). As a legal theory, the Doctrine does not directly address the social
theories on the multidimensional aspects and attributes of a place. Analysis of the
relevant literature on how place is produced as a social process helps to explain how
judges interpretations of campus places, as public fora in public forum analysis, is a
place-typing method. An examination of judicial interpretations of campus place
benefits from a theoretical model of place that incorporates a critical analysis of
place-typing with public forum analysis and the Public Forum Doctrine.
The process of applying the broader concepts of material, imaginal, and
conceptual aspects of place-types to the Auraria campus is place-typing a physical
location as a multidimensional place. The aspect of place-typing is similar to the
Geographical Information Systems (GIS) model of linking layers of data that
constitute physical locations. This research provides a context in which judicial
interpretation of campus place-type occurs in the public forum analysis of a campus
place. The attributes model of the form, use, and meaning of place is similar to the
Global Positioning System (GPS) as triangulation of place attributes that identify a
37


specific set of relationships in a physical place. I explain the significance and
differences between the aspects and attributes of a place in the following sections.
Aspects of Types of Places
Franck and Schneekloths (1994a) analysis of place is a theoretical model for
revealing commonalities and differences in material places not previously obvious or
apparent. The process of creating categories of places is a human endeavor designed
to structure knowledge by creating a systematic order of places (Franck &
Schneekloth, 1994b). The authors wrote that the place-typing process occurs in the
material, imaginal, and conceptuaT' world of human experience (1994b, p. 16).
They described the material, imaginal, and conceptual aspects of place-typing as:
Material place types exist in the material world of matter and are
the socially constructed, usually named, kinds of places we occupy
or observe in the world. Material places are created by the
dominant forces in society to represent and reproduce the dominant
order and values of the society at a period of time.
Imaginal place types exist in our aspirations, hopes, fears about the
world and our place in it. Imaginal place types include archetypes
and ideal types, are made of words, ideas, and beliefs, representing
imagined, remembered, or otherwise cognitively constructed
places.
Conceptual place types exist in our thinking, ordering, analyzing,
and reading of the world. Conceptual place types include
classification systems, typologies, and typological analysis, are the
intellectual construct used for description, explanation, and
prescription. (1994a, pp. 16-23)
I use the term types of place to examine Auraria, the multiple definitions of
the word campus, and the Public Forum Doctrine to gain insight into the broader
38


contextual place transformation of the identity, image, and interpretation of the
flagpole area by different institutions and individuals.
Types of Place Operations
The operating process of place plays a vital function in producing, shaping
and communicating place-types. Franck and Schneekloth (1994b) explained that
types of places operate in society through the following five physical and mental
actions:
(1) Occupying and engaging in activities in the place produce and reproduce
meanings for place-types;
(2) Naming a place shapes our imagination, behavior, perceptions,
interpretations, interactions, and expectations of the relationships over the use and
meaning of the place;
(3) Imaging merges the material and imaginal aspects of place as images in
our mind. The images are idealized representations and experiences that guide daily
spatial practices;
(4) Inventing and modifying involve acts of ordering and reordering by
inventing and developing the world in different categories to structure the material
world to accommodate space practices; and
(5) Representing the material and imaginal places through words, images, and
fabrications is a significant form of power to influence others on how a place
functions (p. 23).
39


The analysis of place I this dissertation is also an examination of how a social
process produces types of places that are comprised of specific place-types. Similarly,
Judge Figas interpretation of the flagpole area was a place typing assessment of the
overall context of the Auraria campus as a type of place and the flagpole area as a
place-type. In his public forum analysis, he applied a more conceptual type of place-
typing assessment to categorize the flagpole area as a public forum. His place-typing
assessment included an examination of the attributes of the flagpole area to
systematically determine how the location was similar to other places interpreted as a
category of public fora.
Place-Type Attributes
The specific place-typing process includes a micro-assessment of conceptual
types of place to produce categories of place-types. Franck (1994) specifically
identifies form, use, and meaning as three attributes that are conceptually used to type
specific place-types. She added: Types are categories of place that we group together
because the places are alike in some way, and types are specific places that we treat
as members of categories (p. 345). Form includes both long-lasting and temporary
physical attributes used as intervention in order to create and furnish a place, either
inside or outside. Use describes both general and specific activities performed in the
setting or place. Meaning attributes are practical and symbolic messages that include
both the latent and manifest purposes of the place.
40


Franck (1994) declares that controversies over meaning and use arise because
of different interpretations of a place. She asserts that the lack of one to one
correspondence between the attributes of form, use, and meaning results in conflicts
over the interpretation of a place. Central to this research analysis of the place-typing
conducted by Judge Figa, in his public forum analysis, is his interpretation of the
character of the flagpole area when he classified the place as a designated public
forum. His interpretation of the conceptual nature of the flagpole area as a public
forum category, corresponds to the place-typing method in Francks (1994) place-
typing model.
Place-Type Summary
Franck and Schneekloths (1994b) place-typing model is a theoretical
framework for interpreting how multiple dimensions of place represent how social
and mental actions in society operate to produce place-types. The place-type model
builds on the understanding that interpretations of place are neither static nor one-
dimensional. The place-type theory is a model that examines differences in the
interpretation of place based on place-typing methods.
Judge Figas interpretation of the character of the flagpole area on the Auraria
campus is a critical factor in his public forum analysis. His place assessment of the
form of the Lawrence and Tenth Streets sidewalks, and how pedestrians use the
intersection as the crossroads of the campus, influenced his interpretation of the
meaning of the flagpole area as a designated public forum. Judge Figas public forum
41


analysis of the flagpole area included an assessment of the broader contextual aspects
of the location as a former city street and a higher education campus to conduct a
more specific micro analysis of the campus place attributes of the flagpole as a
physical location within the campus. The judge ultimately interpreted the place-type
attributes associated with the flagpole area to rule that the AHEC staff did not have a
justifiable reason to prohibit non-students from expressing their First Amendment
rights of expression in that area.
The lack of a typology describing campus places that are judicially interpreted
as public forum categories has created an uncertainty about the locations and levels of
constitutional protections of freedom of speech. This research on the Public Forum
Doctrine examines the judicial interpretation of the campus places as public fora. The
purpose of this research is to create a place-typing method and typology that
represents campus places as public fora. The typology will improve the fair notice
communication of the standards of how the Public Forum Doctrine is applied to
higher education campuses within the Tenth Federal Circuit and across the United
States.
Research Questions
Judge Figas opinion answered the initial question on constitutional
protections for private speech on government property; yet it generated several more
questions on how the public forum analysis may be applied to other campuses across
the country. The judges interpretation of the Auraria campus flagpole in Mason v.
42


Wolf (2005), as a public forum analysis is a legal place-analysis process. The primary
research question of this dissertation, therefore, is: How do judicial interpretations of
campus place in constitutional law produce public fora on public higher education
campuses in the United States of America? This primary question was designed to
examine how judges interpret physical places when they conduct public fora analysis
in their judicial opinions. The following secondary research questions were framed by
the primary question:
In the Mason v. Wolf (2005) case, how did Judge Figas
interpretation of the flagpole area as a type of place produce a
public forum?
How do judicial interpretations of campus places in other campus
court cases produce public fora across the different federal court
circuits?
I answered these secondary questions by analyzing the content of federal
judicial opinions of court cases that involved conflicts over speech restrictions on
public higher education campuses across the United States. These questions were the
foundation of inquiry to identify the character and types of campus places that are
judicially interpreted as apparent categories of public fora.
Research Method
This research is not posed as much to solve a problem but to address a
question involving the relationship between place and power on a university campus.
43


The three questions in this research were designed to address Judge Figas statement
that public forum case law provides fair notice of constitutional standards in the
management of public places. The constitutional standards represent the power of the
First Amendment to balance the institutional authority of the AHEC staff to manage
the flagpole area and the Masons individual autonomy of exercise his freedom of
speech in the same place.
The three research questions address a both a legal and factual problems in
determining the legal reasoning judges use to interpret and identify campus places
types as public fora. The second issue is how to create, communicate, and replicate
the judicial decisions in a typology that represents how judges interpret the campus
place types as public fora.
The conventional approach to addressing a legal question in constitutional law
is to research the applicable case law to identify the legal reasoning and precedents
presented in the judicial opinions to support the courts decision in resolving the legal
dispute. Studying court cases provides an opportunity to create a research model to
examine how conflicts are resolved in the American legal system (Cohen, 1985). In
this dissertation I combine a legal and qualitative research method to address a legal
question on how public fora as physical places are produced through judicial
opinions. The legal research begins with identifying the legal questions and dividing
the questions into legal and factual subjects. The subjects are analyzed using legal and
44


non-legal data to identify patterns in the development of the case law to answer the
initial questions.
In order to identify how the judges interpret campus place as public fora, I
will conduct a content analysis of federal court cases to examine how judges employ
and communicate their place-typing method in their opinions. I analyze the judicial
opinions to identify legal principles, language, and precedents that are incorporated in
the public forum analysis of the selected court cases. The content analysis method is a
non-conventional legal research approach to study a broad range of legal subject areas
that have social, political, and economic connections and applications (Hall &
Wright, 2008).
I expand the legal research method by including Franck and Schneekloths
(1994a) theoretical place-typing model in order to examine both legal and factual
judicial interpretation of the campus as a multidimensional place. I combine the legal
and qualitative analysis to exam which dominant characteristics of the campus place-
types influence the public forum analysis and consequently the outcomes of the
federal court cases. The following diagram (Figure 1.6) is a visual representation of
the research questions on how the judicial interpretation of campus place uses place-
typing assessments in the public forum analysis of campus place as public fora.
45


Multidimensional Place Judicial Place Interpretation ^ Public Legal Classification
lypmg
Campus Place -Type Assessment Analysis Public Forum Category
Figure 1.6 Place Type Assessment and Public Forum Analysis Model
I use the Multidimensional Place-Typing Model, content analysis of the
selected cases, a case study on Auraria, the related place assessments of the flagpole
area, and visual representations of campus place-types to create a Campus Place
Public Forum Typology that links the social constructions of multidimensional places
with legal interpretations of places as public forum categories.
This research employed a multidisciplinary approach to identify the
relationships between the law and place that are not apparent in the literature, case
law or general observations. The research method is a unique opportunity to examine
the campus as a multidimensional place by combining a legal method with a planning
approach to examine a practical problem. The data analyzed for this research are
judicial opinions of court cases of higher education institutions involved in First
Amendment speech conflicts in which the dispute was over the use of campus
outdoor areas. This research on the place-typing assessment of physical places that
are the subject of judicial investigation assists in identifying, classifying, and
representing the location and level of constitutionally protected individual speech
46


rights on higher education campuses. Figure 1.7 is a visual description of the research
methods used in his dissertation.
:r
j§ o '
a.
5 *7 £
5 V. t
Figure 1.7 Research Methods Diagram
Chapter 1 contains the background information on the Mason v. Wolf (2005)
federal court case, and the legal and factual issues that are posed as a research
question. Both the constitutional precedent of the Public Forum Doctrine and Franck
and Schneekloths (1994) place-typing model is introduced to identify the theoretical
concept that place is a multidimensional legal and social construction.
47


In Chapter 2, the Literature Review contains different types of theories and
literature on the multidimensional aspects of place. I expand on Franck and
Schneekloths (1994) place-type model as a comprehensive theoretical model to
examine how multidimensional interpretations of physical places reveal how different
place-types are produced and operate in society. I create a Multidimensional Place-
Typing Framework that integrates Franck and Schneekloths (1994a) place-typing
model with other place and space theories, in order to examine how the place-type
theory interconnects in the literature regarding place. I design the Framework to
examine how the multidimensional aspects of place are interpreted and applied as
place-typing methods across different academic disciplines. I apply the Framework to
in Chapters 4, 5, and 6 to conduct an assessment of the three types of place that
describe the flagpole area as a multidimensional place on the Auraria campus. The
three place descriptions are Auraria (Chapter 4), the multiple definitions of the word
campus (Chapter 5) and the evolution of the Public Forum Doctrine into a legal
precedent (Chapter 6).
Chapter 3, Research Methods, I briefly discus the federal judicial system and
how the development of constitutional law is produced through judicial opinions that
from foundation of case law. In this chapter I include a brief explanation of the
principles of legal research, and the research rationale and process used in this
dissertation. This is an importance section to inform the reader of the underlying
problem in this research is a lack of a single comprehensive public forum case that
48


applies in all circuits that specifically defines and describes all types of place-types as
public fora, (a little more on what I did the importance of reader to understand that
the court system is based on jurisdictional boundaries that are identified as circuits.
I explain Hall and Wrights (2008) research method of analyzing the content
of judicial opinions begins with a selection of cases, followed by systematically
coding the characteristics of the court cases. Both processes were part of my search
and sorting of court cases that involve the public forum analysis of campus places to
resolve speech conflicts on higher education campuses. The third part of this content
analysis research method is analyzing the coding results of the public forum judicial
opinions.
The legal research sources used for this study included legal journals, law
reviews, case reporters, and the ninth edition of Blacks Law Dictionary (Gamer,
2009); as well as online legal databases, primarily LexusNexus to locate and identify
legal decisions. This research included significant review and analysis of public
forum jurisprudence, in order to assess the significance of the development of public
forum as a legal concept into a contemporary legal doctrine in constitutional law.
In Chapter 4,1 research the material, imaginal, and conceptual place aspects
of the Auraria campus to provide a multidimensional perspective on the Auraria
campuss historic development. I provide a history of the Auraria campus to identify
the key transitions periods in how the area was identified as a city, community, and
campus. For Chapter 5,1 examined the multiple definitions of the word campus, to
49


discuss the significance of a campus as a type of place in the United States. Chapter 6
consists of a case law review of the history of the Public Forum Doctrine as a legal
precedent to identify the three development phases of public forum as a constitutional
place.
In Chapter 7,1 use the place-typing assessment of the flagpole area to analyze
and classify the content of the Mason v. Wolf (2005) opinion. I analyzed the content
of the Mason v. Wolf (2005) court opinion to address the secondary question which is
specific to Judge Figas interpretation of the Auraria campus flagpole area as public
fora. I use the information from Chapters 4, 5, and 6 to create a place-typing
assessment model, Flagpole Place-Type Model, to illustrate a broader contextual
overview of the flagpole area as a multidimensional place that consists of different
place-types. The examination of the place aspects of the each of the three subject
areas provides broader contextual insight into the transformation of the place identity
of the flagpole area. My analyses identified the significant place assessments used by
Judge Figa in his interpretation of the flagpole area.
The content analysis of Judge Figas legal opinion in Mason v. Wolf (2005) is
the central case for creating a baseline set of campus place-types attributes to
compare the judicial interpretations of campus place-types in similar court cases that
have involved campus places categorized as public fora. I use Mason (2005) as the
central case to identify and create a legal place-typing model on the Auraria campus
to compare to the selected cases in Chapter 8.1 evaluate the content analysis of the
50


Mason v. Wolf (2005) opinion with the other similar federal court cases that have a
fact pattern involving the judicial interpretation of campus places in public forum
court cases. The collection and analysis of other federal cases and circuits addressed
the third question on how to identify commonalities and differences in how federal
judges apply the public forum analysis to different campus places.
Chapter 8 contains the content analysis of selected public forum court cases,
in continuing the development of the Campus Place Public Forum Typology. Judge
Figas legal opinion is compared to other judicial opinions on campus public forum
analysis, in order to identify how his interpretation of the Auraria campus flagpole
area, as a place-type, compares to the other public forum analyses of campus place-
types in the selected campus public forum court cases.
In Chapter 9,1 analyzed the judicial interpretations from the previous chapters
to create the Campus Place Public Forum Typology. I applied the judicial
interpretation of campus place from the Mason v. Wolf (2005) case in Chapter 7 and
selected cases in Chapter 8 to inventory, categorize, and incorporate the case law
findings into the Campus Place Public Forum Typology. I also analyzed and
compared the judicial interpretations in order to identify the locations and levels of
individual First Amendment rights and institutional restrictions within campus place-
types.
The research findings, implications, and conclusions of the dissertation are
detailed in Chapter 10. This chapter includes my analysis of judicial interpretations of
51


campus place as public fora in the Mason v. Wolf(2005) court case and the selected
public forum court cases at other public higher education campuses across the United
States. I reviewed the selected cases, to broaden the understanding of how judicial
interpretation of campus place in public forum analysis is a method of judicial place-
typing. I identified and described how physical locations are judicially interpreted and
produce public fora as a type of multidimensional legal place. I concluded the
chapter with a discussion on how to use the Campus Place Public Forum Typology of
campus place-types as public forum categories. I discussed how visual
representations of campus places in public fora cases, benefit understanding where
speech rights on higher education campuses are protected constitutionally. Then I
summarize the major points of the dissertation and identify future research to apply
the place-type public forum model to non-higher education campuses.
Overview of the Study
This dissertation is a legal case study on the Public Forum Doctrine is
organized into ten chapters as outlined below. Chapters 1, 2, and 3 contain the
Introduction, Literature Review, and Research Method for developing the theoretical
foundation of place-typing. Chapter 1 includes an introduction to the Mason v. Wolf
(2005) federal court case, the background of the research study, the research problem
and questions, statement of the problem, and the purpose, justification, and
significance of the study.
52


In Chapter 2, I introduce the Multidimensional Place Typing Framework to
integrate Franck and Schneekloths (1994a) theoretical model with other place and
space theories. I use the Framework to interconnect the different scholarship and
theories on the multidimensional aspects of place in the literature. I applied this
Framework when examining the place identity of the flagpole area as Auraria, a
campus, and a public forum. I conducted a place assessment of the development and
transition of Auraria as a multidimensional place in Chapter 4; the multiple
definitions of the word campus in Chapter 5; and the evolution of the Public Forum
Doctrine into a legal precedent in Chapter 6. I incorporated the information from
Chapters 4, 5, and 6 to provide a broader contextual understanding of the flagpole as
a multidimensional place in the subsequent chapters in the dissertation.
In Chapter 7,1 analyze the content of Judge Figas interpretation of the
flagpole area in the Mason v. Wolf (2005) opinion to identify the place-typing
attributes he used in his public forum analysis. I compare the content analysis from
Mason v. Wolf to apply as a place-typing model to the selected cases in Chapter 8. In
Chapter 9,1 analyzed the judicial interpretations of campus place from the previous
chapters to create the Campus Place Public Forum Typology. I applied the Typology
to the Auraria campus place-types to index and map the public fora categories on the
Auraria campus. I conclude the dissertation by identifying the research findings,
implications, and conclusions in Chapter 10. The dissertation outline is charted in the
following (Table 1.1).
53


Table 1.1 Outline of Dissertation
Chapter 1 Introduction Dissertation Overview Mason v. Wolf Federal Court Case
Chapter 2 Literature Review Multidimensional Place-Typing Framework Aspects, Operation, and Attributes of Place Types
Chapter 3 Research Methods Content Analysis of Judicial Opinions Method
Chapters 4, 5, 6 Assessment of Types of Places Chapter 4 Auraria Case Study Chapter 5 Definitions of Campus Chapter 6 Public Forum Doctrine
Chapter 7 Content Analysis of Federal Court Case Content Analysis of the Judicial Opinion in Mason v. Wolf
Chapter 8 Content Analysis Selected Federal Court Cases Content Analysis of the Judicial Opinions of Selected Campus Public forum Court Cases
Chapter 9 Campus Place Public Forum Typology Create Campus Place Public Forum Typology to Apply to Auraria Campus
Chapter 10 Conclusion Research Findings, Implications, Limitations, and Recommendations
54


Definition of Terms
Appeal: A request to a superior court composed of a panel of judges, to
review a lower courts decision.
Case: A civil or criminal suit or action.
Case Law: Law established by judicial decisions in cases distinguished from
law, created by legislation.
Courtyard: A small outdoor space partly or entirely enclosed by building(s) or
other means of enclosures.
Designated Public Forum: Public property that is not a traditional public
forum but which the government has intentionally designated for expression.
Dictum: A statement by the court which extends beyond the issue at bar. The
statement is non- binding but tends to have a strong persuasive effect, by being in an
authoritative decision, or stated by an authoritative judge, or both.
Doctrine: A principle established through judicial decision.
Green or Field: A large, open, grassy area used for formal or informal play.
Intermediate scrutiny: A legal standard to determine the constitutionality of a
statute or government action that applies to a quasi-suspect classification. To
determine if a statute or government action passes the test, a court considers whether
that statute involves important government interests and whether the law or state
action is related substantially to the achievement of important government objectives.
55


Jurisprudence: A body of law dealing with a specific issue or area.
Limited Public Forum: Public property created for a limited purpose for use
by certain groups or for the discussion of certain subjects.
Mall: A shaded walk for promenade by pedestrians, sometimes jointly used by
bicycles, public transit, and/or service vehicle.
Non-public Forum: Types of public property that by tradition or designation
are not dedicated to open communication.
Opinion: A judicial written explanation of how a judge reached a decision in
any court case.
Piazza: A public open space.
Public Forum: Government owned property where government restrictions,
controlling time, place, and manner of speech, must not be based on the content of
the message; must be tailored narrowly to serve a significant government interest, and
must leave open ample alternatives for communication.
Precedent: A judicial decision that should be followed by a judge when
deciding a later similar case.
Quadrangle: An outdoor area surrounded on all sides by buildings.
Square: A large open area bounded by buildings, streets, and/or the area at the
intersection of several streets.
Strict scrutiny: A legal standard to determine the constitutionality of a statute,
or government action when that statute implicates a fundamental right or relates to a
56


suspect classification under the equal protection clause. To determine if a statute or
government action passes the test, a court considers whether the government has a
compelling interest in creating the law or government action, whether the statute is
narrowly tailored to meet the governments objectives, and whether there are less
restrictive means of accomplishing the same.
Terrace: A level space raised above the surrounding area, usually flanked by a
building.
Traditional Public Forum: Places that by long tradition, or by government
fiat, have been devoted to assembly and debate; the rights of the State to limit
expressive activity are sharply circumscribed.
Chapter Summary
This dissertation uses the content analysis of judicial opinions to examine how
federal judges interpret campus places in public forum court cases that involve
constitutional conflicts over the exercise of First Amendment rights on higher
education campuses in the United States. This research method is a legal case study
of the content analysis of the Mason v. Wolf (2005) judicial opinion and similar
selected federal cases; supplemented by a place-typing analysis of the Auraria
campus, the multiple definitions of the word campus, and the Public Forum Doctrine.
The Mason v. Wolf (2005) case and Auraria campus study provided information for
designing the Campus Place Public Forum Typology of public forum categories,
57


which can be used to compare court cases and campuses throughout the United
States.
In summary, Chapter 1 has included an introduction and background of the
Mason v. Wolf (2005) case; as well as the research questions and definitions of terms
and concepts used in this dissertation. The discussion of the problem statement, and
overview of the research problem, purpose, justification and method, provides insight
into the research significance of this dissertation. In this chapter, I outlined the
contemporary confusion over the locations and levels of the United States
Constitutions First Amendment speech protections on higher education campuses.
The chapter also provided a detailed section on the organization of subsequent
chapters in the dissertation, including an overview of the chapter 2 literature review,
which examines literature on the multidimensional types of place and place-typing
models.
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CHAPTER 2
REVIEW OF THE LITERATURE
Introduction
The literature reviewed for this dissertation provided insight into the primary
research question, How do judicial interpretations of campus place in constitutional
law produce public fora on higher education campuses in the United States of
America? The central premise of this research was to recognize that place represents
multidimensional social constructions and interpretations of physical locations.
Franck and Schneekloths (1994b) place-type model was the primary theoretical
model I used to examine the multidimensional aspects of place.
In this chapter, I have used the place-typing model as a theoretical framework
to organize this literature review on the multiple dimensions of place, in order to
examine how social and mental actions in society operate to produce place-types.
Franck and Schneekloth (1994b) assert that it is important to recognize that the
multiple dimensions interact simultaneously. They advocate that by examining the
material, imaginal, and conceptual aspects of place individually one can identify the
dominant institutions and interpretations that have transformed the place over time.
I have expanded on Franck and Schneekloths (1994b) material, imaginal,
and conceptual triad of place aspects by incorporating additional theoretical models
59


and terms that address the social construction of multidimensional place, in order to
create a Multidimensional Place-Typing Framework. I used this Framework to
examine how the multidimensional aspects of place are interpreted and applied as
place-typing methods across different academic disciplines to produce public places.
This literature review was the first step in examining how place, as a socially
constructed multidimensional theory, corresponds to place in the legally constructed
Public Forum Doctrine.
Theories on Place
The theories and concepts of the multidimensional aspects of place and space
emerged during the 1960s when academic disciplines and socio-spatial scholars
began examining the social and political aspects of physical locations. Research and
critical examination of how physical locations are shaped by political power and
social tensions contributed to interdisciplinary research on examination of the
multidimensional aspects of physical space (Nemeth, 2007).
Henri Lefebvre (1976; 1991), Edward W. Soja (1996), John Agnew (1996;
1987), and other social science scholars established that the relationship between
physical locations and political power was not being addressed when social problems
were examined. These scholars, thus, challenged conventional concepts and
descriptions of physical locations as non-political sites for developing research
approaches to critically examine how power is created, maintained, and perpetuated
in society through producing physical locations. Lefebvre asserted, There is a
60


politics of space because space is political (p. 33). The declaration that the material
world is not a non-political objective place generated new theories and approaches to
critical analysis of social structures and human interactions when interpreting
physical locations.
Scholars who examine physical locations use different terms to identify and
describe how multidimensional settings are produced as physical places. The
following terms are examples of those used by scholars to identify multidimensional
settings as types of: place (Franck & Schneekloth, 1994a; Hayden, 1995; Tuan,
1977), space (Carr, Francis, Rivlin, & Stone, 1992; Goodsell, 1988; Lefebvre, 1976,
1991), territories (Soja, 1971, 1996), landscapes (Groth & Bressi, 1997; Jackson,
1984; Schein, 1997), realms (Lofland, 1998), and geographies (Blomley, 1994;
Elwood & Martin, 2000; McCann, 1999). I review the broad selection of terms and
theories on the multidimensional place in the following section.
Place and Space
The most common and universal terms used to identify multidimensional
physical locations are place and space. Conceptually, as interpretations of physical
locations and social interactions, these words are not strictly distinguished in every
academic discipline (Lou, 2009). The different terms and concepts of place and space
are easily misunderstood if not identified and distinguished as multidimensional
aspects of how social settings are located, produced, and maintained. Cultural
geographer David Harvey emphasized that place has to be one of the most multi-
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layered and multi-purpose words in our language (Harvey, 1993, p. 4). Assessing
multiple theories on how place is produced and experienced was an important
element in my research on legally interpreting place in the Public Forum Doctrine.
Yi-Fu Tuan (1977), a human geographer, distinguishes space as more an
abstract concept than place, proclaiming that an examination of place must include an
understanding of the relationship to space, because these two concepts require each
other for definition. He has described space as a medium that allows movement;
while a pause in movement makes it possible for the location to transform into a
place. Tuan (1977) declared that human experience exists in abstract undifferentiated
space until specific locations become endowed with personal values as place. In
Landscapes of Fear (1979), Tuan counsels that the concept of place is not always
symbolic of positive attachments; place also represents landscapes of negative
interactions, associations, and fears. Tuans assessment of the landscape as a social
environment of both positive and negative experiences expands the critical
assessment of the duality of place as a social setting.
Interpretation of physical locations must include a critical analysis of how a
site was produced. In The Production of Space, French philosopher Henri Lefebvre
(1991) theorized that a space is not an empty physical or geometric location, but
rather is the reflection of social structures and relationships. He emphasized analyzing
the embedded meanings and social relationships in a space, to provide insight and
understanding on how a space is produced through social interactions. His spatial
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production model uses the term moments to describe the interaction of the spatial
triad: the representations of space, representational space, and spatial practice. He
identified representations of space as material spaces conceived by the dominant
institutions in society to reinforce social-class hierarchies. He described
representational space as space directly lived through associations of images and
symbols by users and inhabitants. The spatial practice dimension in Lefebvres
model corresponds to the performance, activities, and relationships of the members of
the society that reproduce that space in everyday life. Lefebvre asserted that a space is
not a thing but rather a set of relationships between things; because space implies,
contains, and dissimulates social relationships.
Lefebvres (1991) spatial triad has been a theoretical framework for analyzing
physical locations and social processes in many case studies on the production of
space. His spatial theory model has been used prevalently in qualitative case studies
to analyze the production of types of urban space. In the following sections, I discuss
several of these case studies on the material, imaginal, and conceptual aspects of
place.
Edward Soja (1996), a political geographer, explained that space has been
examined only as a material space or a space constructed in the imagination. He
developed the concept of the trialectics of spatiality model, comprised of Firstspace,
Secondspace, and Thirdspace. Soja (1996) defined Firstspace as the physical and
material space measurable in concrete and measurable geographies. According to
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Soja, Firstspace resulted from analytical deciphering and fixation on the material
form of things in space to create an absolute and objective depiction of the material
world (p. 76). Secondspace, in contrast, exists as the interpretive locale of individuals
where activists visually or literately reposition an image in their subjective
imaginations as a symbolic space. Soja expressed a concern that the geographical
approach to spatiality thinking does not expand beyond the Firstspace of material
space, which is mapped and analyzed, or the mental constructions and representations
of Secondspace.
Soja (1996) expanded on Lefebvres spatial triad by applying spatial concepts
in real settings as case studies on the production of space. He created a concept of
trialectics, based on Lefebvres spatial triad, in order to identify the existence of a
Thirdspace, which is created from the tension between the material nature of
Firstspace and the imagination of Secondspace. Thirdspace is produced as another
category of space when material and imaginal spaces combine to form what Soja calls
thirding-as-Othering (p. 81). The Thirdspace exists simultaneously in the material
world and in imagination as a creation of place, which does not end the existence of
the material and imaginal spaces but continues them in a new reality.
John Agnew (1987) another political geographer, also examined place as a
three-dimensional model, in order to describe political places created in society. He
used the word aspects to contend that space becomes a meaningful site as a place
when the following three requirements occur: (a) location as a coordinate on the
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earths surface in relation to everywhere else; (b) locale as the material setting for
social relations, the actual shape of a place within which people conduct their lives as
individuals and engage in everyday activities; and (c) sense of place as the subjective
emotional attachment people have to a place (p. 5).
Agnews concepts are similar to Francks (1994) model of interpreting place-
type based on interpretations of the physical, emotional, and conceptual aspects that
define and constitute a place. Agnew (1987) described geography as the study of
the interaction among the physical environment, the spatial organization of powerful
institutions, and the lived experiences and ideas of groups of people. He depicts place
and space in the context of a broader process of political practices and movements:
Space signifies a field of practice or area in which a group of
organizations such as a state operates, held together in popular
consciousness by a map-image and a narrative or story that represents
it as a meaningful whole. Place represents the encounter of people with
other people and things in space. It refers to how everyday life is
inscribed in space and takes on meaning for specified groups of people
and organizations.
Interpreting physical locations includes a critical analysis of social structures and
human interactions. Agnew (2002) arranged place and space in a vertical tension that
puts space in a top-down position, defined by powerful actors imposing their control
and stories on others; with place in a bottom-up position that represents the
outlooks and actions of more typical folk (p. 5).
The relationship between place and space as a manifestation of spatial
supremacy and social attachment to types of physical locations is addressed
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throughout this dissertation. The scholars who contributed to the literature on the
multidimensional aspects of physical locations used a variety of words and concepts
to examine social relationships that shape and sustain those physical locations. These
scholars critical examination of the multidimensional aspects of physical locations as
social interpretations and interactions addressed an academic need to examine and
expose the social meaning of production of physical locations. The assessment of
different approaches describing how physical locations are socially produced and
experienced was an important aspect of interpreting place for this dissertation.
Multidimensional Place-Typing Framework
The concept of critical interpretations and analyses of how physical sites are
socially constructed is a central theme in interpreting multidimensional aspects of
physical locations. Franck and Schneekloth described the material, imaginal, and
conceptual dimensions individually, yet asserted that these three dimensions all
interact simultaneously. The necessity to examine place as a continual and
simultaneous interaction of identifiable dimensions is affirmed by the scholars
(Agnew, 2002; Soja, 1996; Lefebvre, 1991). I reviewed the different theories of place
to create a Multidimensional Place-Typing Framework that I would use to identify the
theories and scholarship that describes the different interpretations of how place is
embedded in physical locations.
I designed the Multidimensional Place-Typing Framework to link different
constructs of place and space that are similar to Franck and Schneekloths (1994b)
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material, imaginal, and conceptual aspects of place. I incorporated Agnews (1987)
meaningful place location, Lefebvres spatial triad, and Sojas (1996) spatiality
concepts into a theoretical model; combining these different terms and approaches to
examine the multiple dimensions of physical locations (Table 2.1). The importance of
this triad model is to create an analysis tool to examine how the multidimensional
aspects of place are examined in a three-dimensional world, not only in a two-
dimensional environment. I organized three different place and space theoretical
models into a chart to identify how the theories relate in terms and theories as
material, mental, and categorical place. I used Franck and Schneekloths (1994b)
material, imaginal, and conceptual aspects of place-types as the primary place-typing
model for this dissertation, and have organized the literature into sections.
Table 2.1 Multidimensional Place-Typing Framework
Multidimensional Place-Typing Framework
Theorists Physical Imagination Rational
Franck & Schneekloth Material Place-Types Imaginal Place-Types Conceptual Place-Types
John Agnew Location Sense of Place Locale
Henri Lefebvre Representation of Space Representational Space Spatial Practice
1 Edward Soja Firstspace Secondspace Thirdspace
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Place-Type Literature
This literature review is organized based on the Multidimensional Place-
Typing Model. I compared different place theories to examine the social construction
of multidimensional place because the different interpretations of place enlighten the
understanding of the material, imaginal, and conceptual aspects of place-typing. This
review also serves to enhance the Multidimensional Place-Typing Framework as a
place-typing tool.
In future chapters I will use the Framework to examine the institutions and
interpretations that produced the flagpole area as a multidimensional place over time.
In Chapter 4,1 examine how the socially constructed concepts of place correspond to
the development of Auraria into a campus; I examine the multiple definitions of the
word campus as a multidimensional place in Chapter 5 and in Chapter 6,1 conduct a
case law review of the evolution of the Public Forum Doctrine as a legal precedent
that corresponds to the three different aspects of place-typing. The examination of the
place types in those chapters is a macro-analysis of the identity and contextual aspects
of the flagpole area as a type of place. I also examine the content of the judicial
interpretations of campus place to identify when, why, and where judges conduct a
broader contextual assessment of the surrounding property and boundaries when
conducting a public forum analysis of a physical place.
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Material Place-Type
The first dimension in the Multidimensional Place-Typing Framework is
examining physical locations and human intervention in creating a built
environment. The literature on material aspects of place has examined the
interpretation of human intervention in producing a material world. Lefebvre
described space, conceived by planners and professionals, as the representation of
space. Interpreting physical space must explore how spatial relationships and power
are conceived within a geographical context (Farrar, 2000; Harris, 1991). Measuring,
marking, and mapping places into territorial borders represent how the dominant
contemporary society produces a hierarchy of space and social order in physical
locations. Interpreting the social and spatial hierarchies in material place requires
exploring who exercised power in the construction of the locations to examining how
the place was produced overtime.
Physical Character of Material Place
Similarly, the critical interpretation of place must examine the relationships of
the character of a physical setting within defined and measured spatial dimensions.
Sarah Elwood and Deborah Martin (2000) expanded on the critique of the objective
existence of place by examining the influence of location and scale of place. They
qualitatively researched how places where subjects are interviewed are factors in
research outcomes. They determined that the interview site itself produces micro-
geographies of spatial relations and meaning, where multiple scales of social
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relations intersect in the research interview (p. 649); and that the location and scale
of a place is a factor in determining its geographical boundaries and the scope of
interpretations of its place and place-types.
Mini-geographies describe the scale of a material place that constitutes the
relationships of the researcher with the interview participant, the participant with the
site, and the site within a broader socio-cultural context that affects both researcher
and participant (Elwood & Martin, 2000, p. 650). The scale and location of a place
as a micro-geography represents relationships that exist within a physical location.
Conversely, a larger scale and location are a macro-geography of the broader context
of the place. Therefore, interpretation of a place can differ based on its location and
the scale of the place as a micro- or macro-geography, defined by the social context in
which the place-type is produced and reinforced by physical symbols and textual
representations.
Material places are organized and mapped by their physical character and
socially imposed boundaries that represent the social history imprinted on the
material place. Examination of the architecture in a social setting provides an
opportunity for critical inquiry and interpretation of material artifacts to develop
objective knowledge of the historic context of the social systems that produced the
material place (Morgenthaler, 1995). An important dimension in interpreting a place
is examining where material places are maintained as social territories. Soja (1971)
described the creation of bounded territories as a behavioral phenomenon associated
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with the organization of space into spheres of influence or clearly demarcated
territories which are made distinctive and considered at least partially exclusive by
their occupants or defmers (p. 19). Examination of social territories formed by
physical location provides a basis to interpret the meaning of material place. Karen
Wells (2007) advised that conducting a study of material spaces tends to focus on
who is in the space, instead of the formation of the actual location. She employed
Lefebvres space production triad to analyze the power structures in a city. She
advocated conducting an interpretive excavation of a material landscape, in order to
identify how power is represented in film, maps, and other communication mediums,
as layers of the planning process that influence the culture and social behavior in
cities. The visual symbols used to identify the social structures in a physical setting
are an important medium to identifying social hierarchies represented and maintained
in a physical place.
The research that critically has examined material space promote the theory
that place contains social history. The main theme asserted is that interpreting a
material place must recognize that the physical location is not a neutral element in the
social development of that community. In The Place of Landscape: A Conceptual
Framework for Interpreting an American Scene, Richard Shein (1997) described
material place as a cultural landscape that exists as a text of a social history. He
conducted a case study of the Ashland Park suburb in Lexington, Kentucky, as an
example of how to examine the material aspects of physical locations in the
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production of place. His article outlines different types of material and documents
used to interpret and examine material places. These interpretive tools include
Sandbom insurance maps, zoning regulation history, historic preservation, and
neighborhood associations, all of which provide contextual information on physical
location. Shein warned that reading the landscape-as-text is unstable and requires
constant reinterpretation because the dominant society influences the cultural
landscape to normalize social relations (1997, p. 676). Naming and representing place
is a place-typing technique to operationalizes institutional expressions of social order
through documents, institutional polices, and spatial practices that reinforce social
hierarchies.
Therefore, studying material place as an historic text of how social locations
are created as cultural landscapes provides a means to examine the production of
place in a broader social context as a macro-geography. Eugene McCann (1999) and
Katherine Jones (2000; 2003), in separate research, drew upon the shooting death of
an eighteen-year-old African-American by Lexington, Kentucky police in 1994, to
analyze how urban planning had furthered racial segregation in that city. McCann
(1999) researched Lexingtons racially segregated landscape to generalize his
findings on the production and representation of racialized geographies in U.S. cities.
Jones (2000; 2003) research examined how Lexingtons racial division of white and
black geographies had been maintained through specific spatial ideologies in the
planning process of Lexington neighborhoods.
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Both McCann (1999) and Jones (2000; 2003) applied Lefebvres spatial triad
in organizing their analyses of the production of urban public space, as case studies
on the spatial practices of racial oppression in Lexington. McCann concluded that
Lefebvres theoretical model had been designed to address how racial segregation had
been a factor in the perpetuation of oppression. McCanns assessment is an insightful
analysis on how racial segregation is maintained in segregated social environments
perpetuated by the material aspects of a Jim Crow culture. Both authors identified
that Lexington had used their planning process to embed a segregated spatial identity
that had influenced the social development of the citys material places. Examination
of material aspects of place to perpetuate and maintain racially segregated societies is
not the main focus of this dissertation; nevertheless, examining governments
influence on the construction of social hierarchies is an important element in the
judicial interpretation of public places. Examination of racial segregation as a
constitutional relationship between public place and public expression is further
discussed in the Civil Rights section on the development of the public forum as a
legal precedent in Chapter 6.
Summary of Material Place
The study of material aspects of place provides an opportunity to examine the
complexity of how physical locations are arranged to represent and influence
imaginal and conceptual constructions of place. The prevalent theme shown in the
literature on interpreting material place is a critical analysis of how material place is
73


created to represent and maintain dominant social values. The power to manipulate
material aspects of a place is a typing-method that includes naming and representing a
place through written and visual media. Mapping and measuring physical locations is
a place-making method that operationalizes place-typing to maintain a social order in
material places.
Imaginal Aspects of Place-Type
The imaginal aspect of place is the second dimension in Franck and
Schneekloths place-type concept. They identified imaginal types as place-types that
exist in our minds, hearts, and senses to represent and approximate physical locations
that do not exist materially. The social process of creating an ideal place begins with
images that identify values associated with a material place. Franck and Schneekloth
(1994b) speculated that we seek to produce images from our imagination into the
material world, with meanings and associations, so we can experience place both
materially and imaginally. The imaginal aspects of place-type exist in the mind,
unlike material aspects of place, which are absolute places measured and mapped
within fixed boundaries that maintain a logical association with people and things.
An imaginal place, a place of emotion, does not maintain a rational logic;
thus, it is a place interpreted by how an individual or group relates or associates with
a material place, and with an emotional logic that is difficult to map or measure.
Lefebvre (1991) wrote that representational space does not need to obey rules of
consentience or cohesiveness, because it is redolent with imaginary and symbolic
74


elements, have their source in history in the history of a people as well as in the
history of each individual belonging to that people (p. 41). In summary, imaginal
places are mapped as social territories by imaginal boundaries of emotion and
experience.
The imaginal aspect of place as a social process emerges when individuals
interact as social groups within a physical location, based on the interpretation of the
symbols and images of material places. Lefebvres (1991) concept of representational
space was re-titled by Soja (1996) as spaces of representation. Both Lefebvre (1991)
and Sojas (1996) concepts of place, as the collective social process of how
individuals interpret physical location through feelings and emotions, correspond to
Agnews (1987) sense of place that social groups imprint upon the material aspects of
place. These scholars, who examined the multidimensional aspects of place, have
maintained that imaginal places are produced by individual and collective
experiences, emotions, and memories, associated with image, events, and symbols of
material places.
Placemaking: Creating the Imaginal Place
Embedding mental imagery in material location is the process of placemaking,
an environmental design process to modify material aspects of place into imaginal
aspects of place-type. The examination of material aspects of place-type entails
interpreting the degree to which a location and its features visually represent the
concepts and aspirations of the location as an imaginal place. The construction of
75


imaginary places in our mindse.g., utopia, frontier, marketplace of ideas
produces visual impressions that we, in turn, communicate through pictures and
words in order to inspire a subsequent replication of this ideal material place (Franck
& Schneekloth, 1994b, p. 20). Research on the interpretation of imaginal places is an
examination of forms and meanings that invoke a sense of place in the minds of
individuals and groups, so that material elements are reproduced in the placemaking
process.
Literature on the imaginal aspects of place encompasses research on
placemaking methods, to ensure that material places are created as ideal place-types.
The design team of Carr, Francis, Rivlin and Stone (1992) described placemaking
as an environmental design process that is the most important factor in influencing
public perception. They distinguished three guiding values for the design and creation
of public places: (a) responsive, (b) democratic, and (c) meaningful. Further, Lynda
Schneekloth and Robert Shibley (1995) described placemaking as a social process
to transform space into place by generating spatial designs meaningful in peoples
daily lives. The establishment of ideal material types is dictated by the influence of
how a location is interpreted as an archetype of ideal places.
The perception of placemaking stems from an imaginal bridge that links
material aspects of place to conceptual aspects of place. Interpretation of placemaking
reveals how physical interventions in the material places were designed to promote
particular experiences, activities, and meanings by creating utopias and other
76


idealized place-types (Franck & Schneekloth, 1994b). The process of placemaking
includes layering the material world with imaginal concepts of names, imagining
experiences, inventing and modifying, and representing. Franck and Schneekloth
(1994b) explained that the legal codification, or imposed authority, over a material
place, in turn, limits an imaginal conception to a singular material place-type. They
cited as example that single-family zoning enforces a single idealization of the
American house and the American family (p. 21); that the imaginal aspect of naming
a location is a natural placemaking process that creates place within the material
world.
The concept of placemaking is an intentional activity to create, name, and
promote significant locations of social interactions in material places. Advocates who
promote placemaking expound on the process as a democratic activity that furthers
inclusion of users in the process of creating place. A critical assessment in the formal
placemaking process is who ultimately decides the dominant interpretation of place
that will prevail in the final version of the production of the material place.
Placemaking, viewed as a top-down process, creates political space when not
embraced as a social activity that includes users and individuals who inhabit the
physical location. The placemaking process is an activity that also is a social process
that produces imaginal places as social landscapes that are less formal but
nevertheless are impactful in creating imaginal landscapes.
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Full Text

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A PLACE APART: THE JUDICIAL INTERPRETATION OF CAMPUS PLACE AS A PUBLIC FORUM by Robert Wonnett B.S., University of Colorado at Boulder, 1981 M.S., University of Colorado at Boulder, 1987 M.P.A., University of Colorado Denver, 1994 J.D., University ofDenver, 1995 A thesis submitted to the University of Colorado Denver In partial fulfillment of the requirements for the degree of Doctor of Philosophy Design and Planning 2010

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1 0 by Robert Wonnett All rights reserved.

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This thesis for the Doctor of Philosophy degree by Robert Wonnett has been approved by /l-!'1-/0 Date

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Wonnett, Robert (Ph.D., Design and Planning) A Place Apart: The Judicial Interpretation of Campus Place as A Public Forum Thesis directed by Professor Jeremy Nemeth ABSTRACT This dissertation is a "public forum" legal case study on the federal court case Madison v Wo/f(2005) involving a conflict over the exercise of First Amendment speech rights on the Auraria Higher Education Center (AHEC) campus in Denver, Colorado. The dissertation involves the content analysis of the Mason v. Wolf case opinion and similar federal judicial opinions in order to identify how the judicial interpretations of campus places produce public fora on higher education campuses. The primary research question of this dissertation is: "How do judicial interpretations of campus place in constitutional law produce public fora on public higher education campuses in the United States of America?" The purpose of this dissertation is to broaden understanding the Public Forum Doctrine by creating a Campus Place Public Forum Typology of campus places judicially interpreted as public forum categories. This research supplements public fora case law by identifying, describing, and for the purposes of the Auraria campus creating a visual representation of the campus place-types as public fora on higher education campuses. The Typology is used to illustrate and transform the abstract concept of Public Forum Doctrine into concrete descriptions of physical locations, which court

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judges interpret as public fora. Further, the Typology is supplemented by photographic and other descriptive representations to provide a visual representation of campus place-types that have been classified as public fora on higher education campuses. This abstract accurately represents the content of the candidate's thesis. I recommend its publication.

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ACKNOWLEDGEMENT I would like to thank my dissertation committee Dr. Austin Allen, Dr. Hans Morgenthaler, Dr. Jeremy Nemeth Dr. Rod Muth, and Dr. Pamela Wridt for their advocacy, feedback and patience in my completion of this dissertation. I especially appreciate the enthusiasm of Dr. Austin Allen to serve as my dissertation chair and Dr. Jeremy Nemeth's willingness to serve as the dissertation chair in the final stage of the dissertation process. I would also like to acknowledge the contributions of Dr. William van Vliet, Dr. Sohyun Park Lee, Dr. Joan Draper and Dr. Dwayne Nuzum. I thank librarians Judith Rice Jones and Rosemary Evetts for their technical assistance in archival research and sharing their passion for the search for knowledge. This dissertation has been improved by the editorial support of Mary Patricia Madden, Charol Messenger, Rachelle Womack, and Tracey McCormick who all provided valuable insight and technical assistance in the final version of this dissertation. Mary Patricia Madden's comments, suggestions, and guidance were especially significant during the writing phase of this dissertation. To Ann, my wife and closest friend, thank you for the love, support, and assistance you provided throughout this journey. Your companionship, support, and assistance made the completion of this dissertation possible.

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TABLE OF CONTENTS Figures .......................................................................................................... xviii Tables ........................................................................................................... xxiii CHAPTER 1. IN"TRODUCTION ...................................................................................... 1 Initial Remarks ...................................................................................... 1 Background of the Study ...................................................................... 5 Auraria Higher Education Center .................................................. 7 Campus Conflict ............... ....... .... ...... ...... ................................... 11 Litigation: Mason v. Wolf. .......................................................... 13 Law: Public Forum Doctrine ....................................................... 16 Public Forum Analysis: ............................................................... 18 Interpretation of PlaceType and Speech Rights ......................... 18 Statement of the Problem .................................................................... 20 Campus Space Management .................. .... ..................... ............ 22 Campus Safety and Security .............................................. 24 Campus Free-Speech Zones ............................................... 25 Problem Statement Summary ...................................................... 26 Vll

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Purpose of the Study ........................................................................... 28 Justification of the Study .................................................................... 29 Significance of the Study .................................................................... 30 Auraria As a Case Study .............................................................. 31 The Campus As a Multiple Definition of Type of Place ............. 32 The Public Forum Doctrine ......................................................... 34 Summary of Research Significance ............................................. 35 Theoretical Model: Place Typing ........................................................ 36 Place Typing and Public Forum Analysis ................................... 37 Aspects of Types ofPlaces ................................................ 38 Types of Place Operations ................................................. 39 PlaceType Attributes ......................................................... 40 Place-Type Summary ................................................................... 41 Research Questions ............................................................................. 42 Research Method ............................................................. .................. 43 Overview of the Study ........................................................................ 52 Definition of Terms ............................................................................. 55 Chapter Summary ............................................................................... 57 2. REVIEW OF THE LITERATURE .......................................................... 59 Vlll

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Introduction ........................................................... ..... ............... ......... 59 Theories on Place ............ ................................................................... 60 Place and Space ... .......................... ............................................. 61 PlaceType Literature .......................................... ........ ............ ........ .. 68 Material PlaceType ..................................................................... 69 Physical Character of Material Place ................................. 69 Summary of Material Place ... ................ ..................... ........ 73 Imaginal Aspects of PlaceType .... ..................... ................. ...... 7 4 Placemaking: Creating the Imaginal Place ..................... .. 7 5 Imaginal Landscapes ................................ ......................... 78 The Imaginal Public and Public Space .. ..... .. ..... .............. 83 Summary of Imaginal Aspects ofPlace ....... ................... .. 85 Conceptual Aspects of PlaceType ............................ .................. 86 Places of Authority : Civic Space .. ..................................... 88 Bonus Space ... ...... ..... .............. ........ .... ........................... 95 The Conceptual Public Place : Public Space .............. ......... 95 Legal Geography ... ............. ..................... ........................ 99 Conceptual PlaceType Summary ............. ................. ... . 100 Chapter Summary ............... ..... ................................. ... ........ ......... 101 3. RESEARCH METHODS ....................................................... ....... ........ 103 IX

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Introduction ........................... ........................................ ................... 103 Rationale for Legal Research ............................................................ 104 Source of Legal Data: Federal Court Case Law ............................... 105 United States Court System ........... .... ........................................ 107 The Content Analysis Research Method ..... ...................................... 110 Court Case Selection .................................................................. 11 0 Selection Method ....................................................................... 112 Classifying Court Cases ................................................... 113 Court Case Analysis ................................. ............. ................. ... 114 PlaceType Assessment .................................................................... 116 Benefits of the Research ................................................................... 117 Chapter Summary ............................................................................. 117 4. AURARIAPLACE-TYPES ..... .............................................................. 119 Introduction ....................................................................................... 119 Auraria As a Place-Type ............................ ... .................................... 120 Auraria As a Material Place ................................... ... ................. 122 The Creation of Centralized Government ........................ 130 The Auraria and Denver Street Grid ................................ 132 Auraria Becomes West Denver. ....................................... 134 Auraria As a Place of Architecture, Maps, and Markers 13 7 West Denver As a Imaginal Place Apart ....... ................. ........ . 143 X

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West Denver As a Sense of Place .................................... 149 Auraria As a Conceptual Place ............................................... ... 152 Auraria Campus and Denver Streets ................................ 156 Auraria Malls ................................................................... 159 Auraria Campus in Context .............................................................. 161 Auraria's Future As a Place-Type ..................................................... 164 Chapter Summary ............................................................................. 166 5 THE CAMPUS AS A PLACE TYPE ..................................................... 169 Introduction ....................................................................................... 169 The Campus as a Material PlaceType ...................................... 170 Campus Design and Representation of Democracy ......... ........ 172 Campus Design Research and Theories ........................... 173 Campus Placemaking and Placemarkers .......................... 175 Campus Outdoor Places ................................................... 177 The Imaginal Campus As a Social Place ..................... ............. 179 Collegiate Way ................................................................. 180 The Campus in Perceptual Context ........................................... 181 Campus Environment ....................................................... 184 Shared Governance As Campus Organizational Type ..... 185 Campus Academic Classification Types .......................... 186 Campus Space Management Categories ......................... 187 X1

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Architectural Place-Types ................................................ 188 Campus Place-Type Summary .................................................. 190 6. THE PUBLIC FORUM DOCTRINE ..................................................... 191 Introduction ......................................... ... ........................................... 191 The Developmental Phases of the Public Forum .............................. 192 Public Forum and Civil Liberties .............................................. 195 Public Foru..m and Civil Rights .................................................. 197 Principle of Proportionality .............................................. 200 Summary of "Civil Rights" Cases ................................... 202 In Loco Parentis and Student Place ........................................... 204 Summary of the First Phase ............................................. 206 Second Phase: The Public Forum Era ............................................... 207 The Concept of a Public Forum ................................................. 207 Public Forum in Judicial Opinions ............................................ 208 Third Phase: Public forum Categories .............................................. 212 Public Forum Character and Access .......................................... 218 Research on the Public Forum ................................................... 219 Chapter Summary ............................................................................. 220 7. AURARIA CAMPUS AS A PUBLIC FORUM .................................... 223 Xll

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Introduction ....................................................................................... 223 Content Analysis of Mason v. Wolf .................................................. 226 Comparison to City Sidewalks .................................................. 229 Auraria Campus Place Typing ................................................... 242 Summary ............... .......... ................................................................ 245 8. STUDY FINDINGS: PUBLIC CAMPUSES ......................................... 246 Introduction ............ ................ ......................................................... 246 The Campus As a Place Apart .......................................................... 247 Access and Visibility .................................................... ................... 248 Invited Campus Speakers .......................................................... 248 Newspapers ................................................................................ 250 Lawns and Plazas ....................................................................... 256 Marches and Parades ................................................................. 268 Streets and Sidewalks As Campus Borders ...... ........................ 274 Enclosed and Interior Places ............................................................. 280 Building Steps ......................................... ............ ..................... 280 Dormitories ................................................................................ 281 Display Cases and Bulletin Boards ................................. .......... 283 Television Stations and Theaters ............................................... 287 Meeting Rooms, Libraries, and Classrooms .............................. 288 Xlll

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The Campus As a Public Forum for Student Expression ................. 291 The Campus As a Forum for Off-Campus Speakers ........................ 307 Designated Public Forum for Off-Campus Speakers ................ 311 Limited Public Forum for Off-Campus Speakers ...................... 324 Public Forum Is Not a Shield for Disruptive Conduct ...................... 348 Judicial PlaceTyping ........................................................................ 352 Material Boundaries That Create Place ..................................... 354 Imaginal Aspects of Place ......................................................... 354 Conceptual Aspects of Place ..................................................... 356 Campus Place-Types As Public Fora ................................................ 361 Attributes of PlaceTyping ................................................................ 362 Form: Openness and Visibility .................................................. 362 Use and Function ....................................................................... 363 Meaning and Purpose ................................................................ 363 Access Restrictions .................................................................... 364 Chapter Summary ............................................................................. 365 9. CAMPUS PLACE PUBLIC FORUM TYPOLOGY ............................. 367 Introduction ....................................................................................... 367 Campus Place Assessment and Typology ......................................... 368 Campus Quadrangle As Squares, Plazas, and Malls ................. 370 Flagpole Area ................................................................... 3 71 XIV

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Auraria Memorial Amphitheater ...................................... 3 7 4 Malls and Sidewalks .................................................................. 375 Lawrence Street Mall ....................................................... 376 Larimer Street. .................................................................. 3 77 Tenth Street Mall. ............................................................. 381 Campus Parks, Lawns, and Fields ............................................. 383 Ninth Street Historic Park ................................................ 384 Lawrence Street Mall Lawn ............................................. 386 North Classroom and St. Francis Lawns .......................... 387 Auraria Athletic Fields ..................................................... 388 Courtyards and Terraces ............................................................ 3 90 South Classroom Plaza: Courtyard .................................. 391 Plaza Building Plaza: Terrace .......................................... 392 Library Courtyards ........................................................... 393 North Classroom Patio: Courtyard ................................... 395 Steps and Entrances ................................................................... 396 Dormitories ...................................................................... 399 Auraria Roads and Parking Lots ...................................... 401 Newspapers, Bulletin Boards, and Display Cases ........... 404 XV

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Typology Summary .......................................................................... 405 Chapter Summary ............................................................................. 406 10. FINDINGS AND CONCLUSIONS ....................................................... 410 Overview of the Study ...................................................................... 411 Public Forum ............................................................................. 413 Problem Statement ..................................................................... 415 Research Questions ......................... ... ............... .... ..................... 416 Research Purpose ....................................................................... 417 PlaceTyping Framework .......................................................... 418 Research Method ....................................................................... 419 Court Cases Analysis and Findings .................................................. 421 Content Analysis of Mason v. Wolf .......................................... 422 Content Analysis of Selected Cases .......................................... 425 Judicial Interpretation of Campus PlaceTypes ......................... 427 Supreme Court Public Forum Cases ................................ 429 Campus Architectural Form .................... ........................ 431 Public Forum Boundaries ................................................. 432 Campus Meanings and Classifications ............................. 434 Policies on the Use ofPlace-Institutional Intent ............ 436 Access by Class of Speakers ............................................ 437 Content and Type of Speech ............................................ 439 XVI

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Campus Place Public Forum Typology ..................................... 439 Summary of Interpretations ....................................................... 440 Conclusions ....................................................................................... 441 Implications ............................................................................... 442 How Does It Inform Legal Analyses ............................... 442 Visual Representation ...................................................... 443 Applicability to Other Campuses ..................................... 444 Design of Campus Place .................................................. 445 Campus Space Management ............................................ 446 Place Identity and Negotiation of Campus Conflicts ....... 447 Limitations of the Research ............................................. 449 Recommendations for Future Research ..................................... 451 Concluding Thoughts ................................................................. 454 APPENDIX A. SUMMARY OF FEDERAL CASES ...................................................... 456 B. INVENTORY OF FEDERAL CASES ................................................... 458 REFERENCES .......................................................................................................... 462 xvii

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LIST OF FIGURES Figure 1.1 Auraria Campus ......................................................................................................... 8 1.2 Auraria Campus Entrance .......................................................................................... 9 1.3 The Dimensional Depiction of the Flagpole Area .................................................. 10 1.4 Plaza Building Steps ................................................................................................ 11 1.5 Flagpole with Plaza Steps in the Background .......................................................... 14 1.6 Place Type Assessment and Public Forum Analysis Model.. .................................. 46 1. 7 Research Methods Diagram ..................................................................................... 4 7 3.1 U.S. Judicial System .............................................................................................. 107 3.2 Map of Federal Courts by Circuit .......................................................................... 108 4.1 U.S. Map ofTerritories .......................................................................................... 123 4.2 Early Drawing of Auraria Settlement .................................................................... 125 4.3 Sketch of Denver Overlooking Auraria ................................................................. 127 4.4 Map of Auraria and Denver Streets 1859 .............................................................. 133 4.5 Larimer Street During Flood May 19, 1864 .......................................................... 135 4.6 Sandborn Map .......................................... ............................................................. 138 4.7 Ninth Street Park .................................................................................................... 140 4.8 Ninth Street Plaque ................................................................................................ 141 4.9 Auraria, Georgia Historic Marker .......................................................................... 142 4.10 Lawrence Street Houses Near Tenth Street (1890-1900) .................................... 144 XVlll

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4.11 Lawrence Street from Eleventh Street (1890-1900) ............................................ 144 4.12 Aerial View 1933 Cherry Creek Floodwater ....................................................... 147 4.13 Lawrence Street Pre 1988 .............................. ............................ ........................ 158 4.14 Lawrence Street Post 1988 .......................... ............................ . .... ... ................ 158 4.15 Auraria Ca1npus Walkways ................................................................................. 160 4.16 Pepsi Center and Auraria Campus ....................................................................... 162 4.17 DNC on AHEC Campus August 27,2008 .......................................................... 163 4.18 Rendering of Lawrence Street Pedestrian Mall ................................................... 165 5.1 Campus Open Space .............................................................................................. 188 7.1 Aerial of AHEC and DPAC ................................................................................... 230 7.2 DP AC Galleria and Sidewalk ................................................................................ 231 7.3 DPAC Illustration #I ............................................................................................. 233 7.4 DPAC Illustration #2 ............................................................................................. 233 7.5 DP AC Galleria Entrance and Sidewalk ................................................................. 234 7.6 DPAC and Speer Boulevard .................................................................................. 235 7.7 Lawrence Street Mall and Speer Boulevard .......................................................... 236 7.8 Auraria Sidewalks .................................................................................................. 23 7 8.1 Apartheid Protest UV A Lawn ... .............. ............................................................. 259 8.2 Apartheid Protest UV A Lawn ................... ............................................................ 259 8.3 Map of Auburn Campus ......................................................................................... 264 8.4 Auburn Campus Circa 1989 ............. ..................................................................... 265 XlX

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8.5 Auburn Campus Circa 2008 ......... ................................................................... ... ... 266 8.6 Image of Open Air Forum ................................................... ................................... 267 8.7 Erwin Center and Surrounding Sidewalks ............................................................. 275 8.8 Erwin Center Street Level. ..................................................................................... 275 8.9 16th and Maple Streets ........................................................................................... 278 8.10 Aerial View University of Houston ............. ....................................................... 293 8.11 Aerial View University of Houston ..................................................................... 294 8.12 Texas Tech Campus ............................................. ......................... ..................... 296 8.13 Texas Tech Campus ............................................................................................. 297 8.14 UMBC Campus ......... ............................................................................ .. .... ........ 303 8.15 The University of Arkansas at Fayetteville ......................................................... 317 8.16 Aerial Photograph University of Maryland Campus ........................................... 334 8.17 Strunp Center UM Campus ................................................. ................................ 335 8.18 University of Miami Academic Quad ...... ........................... ... ................... ..... ...... 338 8.19 Aerial Image of Vincennes 343 8.20 Public Forum Categories ................................................................ .... ................ 361 9.1 Auraria Campus Overview .................................................................................... 370 9.2 AHEC Central Outdoor Venues ............................................................................. 372 9.3 Flagpole Area and Emanuel Art Gallery ...... .... .......................... .... ... ................. .. 373 9.4 Flagpole Area Facing West .................................................................................... 373 9.5 Auraria Memorial Amphitheater ............................................................................ 374 XX

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9.6 Lawrence Street Mall ............................................................................................. 377 9.7 Larimer Street and Larimer Plaza .......................................................................... 378 9.8 Larimer Street Entrance ......................................................................................... 379 9.9 Tivoli Commons .................................................................................................... 382 9.10 Auraria Lawns, Parks, Greens and Quadrangles ................................................. 383 9.111mage Ninth Street Park ....................................................................................... 385 9.12 Ninth Street Park .................................................................................................. 385 9.13 The "Central" Lawrence Street Mall Lawn ......................................................... 386 9.14 North Classroom Lawn and Athletic Fields ......................................................... 389 9.15 Auraria Campus Athletic Fields ........................................................................... 389 9.16 Auraria Courtyards and Terraces ......................................................................... 390 9.17 South Classroom Building Plaza ......................................................................... 392 9.18 Plaza Building Plaza ............................................................................................ 393 9.19 Library Courtyard ................................................................................................ 394 9.20 Library Courtyard ................................................................................................ 394 9.21 North Classroom Plaza ........................................................................................ 395 9.22 Plaza Building Steps ............................................................................................ 397 9.23 East Steps at South Classroom Building .............................................................. 398 9.241mage of Campus Village Apartments ................................................................. 399 9.25 Alley Between Science Buildings and St. Francis Conference Center ................ 401 9.26 AlffiC Campus Map ............................................................................................ 402 XX1

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9.27 AHEC Crunpus Parking Map ............................................... .... ............................ 403 9.28 Auraria Crunpus Place Public Forum Typology .............. ........... ... ... ................ . 408 I 0.1 Research Model of Crunpus Place Public Forum Typology ... ..... ... ...... .. ....... .... 428 XX:ll

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LIST OF TABLES Table 1.1 Outline of Dissertation ................. ............................................................................ 54 2.1 Multidimensional PlaceTyping Framework ........................................................... 67 4.1 Auraria Place-Types .............. ................................................................................ 122 5.1 Campus PlaceTypes .............................................................................................. 170 6.1 Public Forum Doctrine ........................................................................................... 193 7.1 Flagpole PlaceType Model ......... ......................................................................... 225 9.1 Campus Place Public Forum Typology ................................................................. 409 XXlll

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CHAPTER 1 INTRODUCTION Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (First Amendment to the United States Constitution) Initial Remarks This dissertation is a "public forum" legal case study on the federal court case Mason v. Woif(2005), which involved a conflict over the exercise of First Amendment speech rights on the Auraria Higher Education Center (AHEC) campus in Denver, Colorado. This federal civil complaint, filed by Keith Mason, alleged that AHEC administrators unconstitutionally violated his First Amendment rights to exercise his freedom of speech on the Auraria campus when, on April 12, 2002, they restricted his access and use of the Auraria campus flagpole area. In response, the campus administrators asserted that they were exercising their administrative authority to manage the Auraria campus space by restricting Mason's access to the flagpole area. They contended that assigning Mason, as a campus visitor, to use a free-speech zone on the Auraria campus to exercise his freedom of speech was within the boundaries of the Time, Place, and Manner provision of the Public Forum Doctrine ofthe United States Constitution.

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The Mason v Woif(2005) case is an example of the conflict over the interpretation of campus places as public fora for determining where the government can enforce speech restrictions on higher education campuses A public forum is a legally defined type of public place where conflicts between individual speech rights and institutional speech restrictions are resolved by the judicial interpretation of the freedom of speech clause of the First Amendment of the United States Constitution (Stone, Seidman, Sunstein, & Tushnet, 1991). The U.S. Supreme Court defines a public forum as: Government owned property, where government restrictions controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. (Tribe, 1988, p. 982) It is important to understand that the definition of a public forum as a government owned property is not limited to a physical place (Kaplin & Lee, 2006b ). Federal judges have conducted public forum analysis to interpret bus advertising (Lehman v. City of Shaker Heights, 1974), government employee payroll systems (Cornelius v NAACP Legal Defense and Education Fund, 1985), and university student activities' programs (Rosenberger v. Univ. of Virginia 1995) as types of public fora. The Supreme Court also has ruled that both verbal and non-verbal forms of expression, including written, visual and symbolic are constitutionally protected "speech" (Stromberg v. California, 1931; Tinker v Des Moines, 1969) However, that the freedom of speech is not an absolute individual right, because the government can 2

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apply time, place, and manner restrictions on any individual's speech expressed in a public forum. The U.S Supreme Court created the Time, Place, and Manner provision in the Public Forum Doctrine to allow government administrators to impose reasonable restrictions on the time when, the place where, and the manner of how speech is expressed in a public forum (Clark v. Commun For Nonviolence 1984; Grayned v Rocliford 1972) The Court held that assessing the reasonableness of the Time Place, and Manner restrictions on speech are based on the nature of a place and the pattern of the normal activities that occur in that place ( Grayned v. Rocliford, 1972). The Examples of the Time, Place, and Manner restrictions on speech include limitations on the time of day or day of the week, the location and types of places and the use of loudspeakers or signs as a manner of how the speech is communicated. The word place in this dissertation is used to describe a physical location in the Time Place, and Manner provision of the Public Forum Doctrine. The Supreme Court has stated that "in order to ascertain what limits, if any, may be placed on protected speech we have often focused on the 'place' of that speech, considering the nature of the forum the speakers seeks to employ" (Frisby v. Schultz, 1988 p. 479). The concept of place is also has social meaning as a space that has become embedded with individual and personal values (Tuan, 1977). Place, as well is considered an important feature ofthe campus environment to study, because it is a "tangible expression of the institutional identity" (Chapman, 2006, p. xxxi). The campus speech 3

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conflicts represent the misunderstanding among these legal, individual and institutional interpretations ofplace. In this research I expand on conventional legal research methods to determine how judges interpret campus place as they seek to balance the constitutional tension between individual autonomy and institutional authority when resolving freedom of speech conflicts on higher education campuses. Public forum case law dictates that the judges examine the character of the place in their public forum analysis (United States v Grace 1983). I used multiple methods of research to identify how public forum analysis, as a judicial interpretation of a place s character, is an assessment of multidimensional nature of campus-place types. I used Mark Hall and Ronald Wight's (2008) content analysis method to analyze the content of the Mason v. Wolf(2005) judicial opinion, in order to identify how Federal Judge Figa's interpretation ofthe character of flagpole area as a campus place-type produced a public forum on the Auraria campus In addition to the Mason v. Wolf case (2005) I analyzed the content of judicial opinions in other similar public forum court cases involving speech conflicts on higher education campuses. I compared Judge Figa s public forum analysis to the other judicial opinions to identify to examine how judges interpret the character of campus places to resolve freedom of speech conflicts on higher education campuses. In order to identify how judges interpret the character of campus place-types I incorporated Karen A. Franck and Lynda H. Schneekloth s ( 1994b) place type model 4

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in the content analysis method. The place type model corresponds to the public forum analysis conducted by judges when they use the public forum analysis to interpret campus place as a type of public fora in their judicial opinions By incorporating the two research methods I created a Campus Place Public Forum T y pology to organize and communicate the relationship between judicially interpreted campus place-types and public fora. This T ypology is a research method to examine the interpretation of the character of campus places in public forum judicial opinions as a place-typing classification process. I use the T ypology as both a method and a visual representation to explain how the social constructions of multidimensional places are incorporated within the legal interpretations of places in the judicial determination of public forum categories. Background of the Study Higher education campuses in the United States are physical places that are idealized to represent broad values and meanings beyond their educational purpose The campus, as a multidimensional place is interpreted as a place apart (Stern 1986) a utopian place (Campos, 2002), a public space (Christ, 2004; Gumprecht, 2007) the collegiate way (Rudolph & Thelin, 1990) and shared governance (American Association of University Professors 1984). These interpretations of higher education are symbolized in the buildings and grounds as the g e nius loci of the campus which are the distinctive physical forms that embody "the spirit of the place" (Norberg Schutz, 1980). 5

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The most significant symbol of the higher education campus is as a physical embodiment of democratic principles of individual rights that that are espoused in the United States Constitution (Gelemter 1999 ; Stem, 1986; Turner 1984). Michael Dennis Professor of Architecture at MIT wrote: American universities have until recently been among our most original and poignant models of urban form Thomas Jefferson's Academical Village provided an enlightened direction in the early nineteenth century. Like physical mirrors of the American Constitution, these campuses projected an image ofbalanced reciprocity between the public and private realms, between the ideal and the circumstantial. (1995, p. 109) The campus is the physical manifestation of a broad array of meanings and values that define the campus as a democratic place of collegiality open inquiry and civil debate. The physical features of higher education campuses also symbolize a place of individual speech rights, which are protected by the First Amendment of the United States Constitution. In 1967 the U.S. Supreme Court acknowledged that the college classroom is "peculiarly the 'mark e tplace of ideas"' (Keyishian v. Board of Regents, 1967, p. 603). In 1972, the Supreme Court expanded their association of speech and place beyond the classroom to the entire campus, by stating that the "college classroom with its surrounding environs is peculiarly the 'marketplace of ideas"' (Healy v. James 1972 p 180). The Court use of the term marketplace" signified their interpretation that the campus is distinctly the type of place where the freedom of speech is protected by the First Amendment of the United States Constitution. 6

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However, the Court also held that the right to engage in speech activities on campus is not superior to engaging in speech activity on other types of public property. The Court asserted that the same reasonable time, place, and manner freedom of speech restrictions imposed in the community can be applied on a higher education campus. The exercise of speech rights on campuses also can generate complaints when an individual's speech disrupts campus activities or is specifically intended to offend others in the marketplace and to provoke debate in campus public places. The campus becomes a place of constitutional conflict when individual First Amendment speech rights are constrained by institutional speech restrictions in managing the marketplace. The speech restrictions are challenged, at times, in court by individuals asserting that the speech management policies have violated their individual speech rights that are protected by the First Amendment of the U.S. Constitution. The Auraria campus is an example of a campus where a public forum was produced based on a constitutional dispute over speech restrictions that were challenged in federal court. Auraria Higher Education Center The Auraria campus opened in 1976 and soon became the largest campus in the State of Colorado (Abbott, 1999). The Auraria campus is state owned property surrounded by Denver streets (Figure 1 1 ). This campus is located west of the Denver downtown business district; the campus buildings and grounds are located primarily within the street boundaries of Speer Boulevard to the east, West Colfax 7

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A venue on the south end, First Street on the west side, and the Auraria Parkway on the north side. Figure 1 1 Auraria Campus (Courtesy Goog1e Earth) 8

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The Auraria campus buildings, services, and grounds are centrally managed by the Auraria Higher Educational Center Administration Services (AHEC). AHEC is a unique higher education urban campus where the University of Colorado Denver, Metropolitan State College of Denver, and the Community College of Denver all share facilities and services (Figure 1.2). The Auraria campus' combined population from the three academic institutions of 31,890 students is the largest student body of any higher education campus in Colorado. One of every five students in Colorado attends one of these three institutions. Figure 1.2 Auraria Campus Entrance (Photograph by author) 9

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The Auraria campus is comprised of several major sidewalks and plazas that form the open campus places. The intersection of the Tenth Street Mall and Lawrence Street Mall forms a plaza in the center of the Auraria campus. A single flagpole is located approximately 30 feet east of this plaza. It is one of the few landmark features in the plaza, formed by the intersection of two main sidewalks in the pedestrian core ofthe campus (Figure 1.3). The Lawrence Street Mall, a pedestrian walkway in the center of the Auraria campus, is the type of campus space where conflicts may emerge between individual autonomy and institutional authority over speech rights. Figure 1.3 The Dimensional Depiction of the Flagpole Area (Courtesy Google Earth) 10

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Campus Conflict The flagpole area was the site of a confrontation on Friday morning, April 12, 2002, between the AHEC staff and Keith Mason and his companions, known as Survivors of the Abortion Holocaust. A week earlier, Mason's group had initiated telephone and email communications with Dick Feuerborn, AHEC Director of Facilities Planning, to request a high traffic area (Mason v. Wolf, 2005, p. 1154) where they could conduct their "First Amendment activity" (Complaint, 2003, p. 6). The Mason group arrived on the Auraria campus at approximately 10 a.m. to "disseminate literature, display placards, and converse with passersby about the issues of abortion" (Plaintiffs, 2004, pp. 1-2). Feuerborn directed Mason and his followers to use the steps of the Plaza Building for their speech activities (Figure 1.4 ). Figure 1.4 Plaza Building Steps (Photograph by author) 11

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Feuerborn chose the Plaza Building location because an unwritten AHEC policy required off-campus groups to conduct their speech activities on the Plaza Building steps or at the amphitheater in front of the Plaza Building. Feuerborn had created this "free-speech zone" because he was concerned about potential violence after incident by another pro-life group had disrupted pedestrian traffic around the flagpole (Mason v. Wolf, 2005, pp. 1160-1161). Feuerborn, therefore, instructed Mason and his followers to remain within a fixed area on and around the Plaza Building steps, located along the Lawrence Street Mall, approximately 130 feet west of the flagpole area, while conducting their speech activity (Plaintiffs, 2004). Mason and several followers began to walk to the flagpole area after two hours, because they perceived that the free-expression zone was not a popular location to communicate their message to pedestrians (McPhee, 2005). The Mason complaint stated that, after the two hours, Mason had "noticed that not more than thirty students walked through the Plaza Building area, but that hundreds of students had walked through the flagpole area" (Mason Complaint, 2003, p. 7). Mason also stated that he thought they could use the flagpole area since they had seen an individual handing out flyers there (McPhee, 2005) Feuerborn stopped the group and ordered them to return to the Plaza Building steps. Mason questioned why his group was being restricted to this location while another person was being allowed to use the flagpole area for speech activity (Mason v. Wolf, 2005). Feuerborn explained the individual was a member of a campus student 12

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group; that since the Survivors of the Abortion Holocaust did not have the same status, they were not permitted to use the flagpole area to hand out their flyers (Mason v. Wolf, 2005). Mason refused Feuerborn's order to return to the Plaza Building steps and was arrested by an AHEC police officer for violating Colorado Revised Statutes 18-9-117(3)(b) "unlawful conduct on public property" (Mason v. Wolf, 2005). AHEC police initially placed Mason in the Auraria campus police holding cell and ultimately transferred him to the Denver City Police lockup (Mason v. Wolf, 2005). Mason bonded out of jail after a few hours; the AHEC's criminal charges against him were dismissed days after his arrest, at the request of the Denver District Attorney's Office (Mason v. Wolf, 2005). Litigation: Mason v. Wolf This confrontation over use of the flagpole area at Auraria campus developed into a federal court case involving the First Amendment of the United States Constitution, when Mason filed a 42 U.S.C. 1983 Civil Rights violation lawsuit in the United States District Court for the District of Colorado on March 4, 2003. The federal law cited in Mason's complaint is 42 U.S.C. 1983 "Civil action for deprivation of rights" under the Civil Rights Law. The law states in part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... (42 U.S.C. 1871) 13

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The complaint stated that AHEC officials had refused to allow Mason "to engage in expressive First Amendment activity outside of a certain designated area on a public campus for higher education" (Complaint, 2003, p. 2). Keith Mason interpreted the flagpole area (Figure 1.5) as a traditional public forum where he could exercise his First Amendment speech rights (Mason Complaint, 2003). Mason and the AHEC administrators all had similar observations of the physical form of the flagpole area, but they disagreed in their interpretations of the character of the campus place as a type of public forum. Figure 1.5 Flagpole with Plaza Steps in the Background (Photograph by author) 14

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In his Complaint, Mason described the historic landmarks, open nature of the campus, location in the Denver business district, and park like features of the flagpole plaza. The Complaint asserted that the AHEC officials at least had created a designated public forum allowing students and non-student groups "to engage in expressive activities at the flagpole area" (Mason Complaint, 2003 p. 8). Mason stated in a newspaper article: "I believe the purpose of a college campus is to exchange ideas between students and the community" (McPhee, 2005). Furthermore, Mason accused AHEC of violating his Fourth Amendment rights by unlawfully seizing and arresting him without probable cause. The Office of the Colorado Attorney General, representing the Auraria campus, argued in court filings that the flagpole area is a non-public forum (Mason Answer, 2003). AHEC declared that the flagpole area is not a public park and "is certainly not a public street or sidewalk" (Mason Dismiss, 2003 p.5). The AHEC pleadings contended that the Auraria campus mission is to provide services for the campus community, not off-campus groups. AHEC also asserted that Mason did not have an ongoing relationship with the Auraria campus and, therefore, had no reason or authority to be on campus without AHEC's permission. Mason's interpretation of the Auraria campus as an open place for exchanging ideas was in stark contrast to AHEC's interpretation that the campus is a closed location meant to serve only the campus community. These disparate interpretations of the flag pole area are an example ofhow individuals observing the same physical 15

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place may create conflicting descriptions ofthe location. D W. Meinig s (1979) landscape essay titled "The Beholding Eye" describes how conflicting interpretations of material places are common occurrences in society because "any landscape is composed not only of what lies before our eyes but what lies within our heads" (p. 34) Meinig (1979) explains that the central problem in the differing interpretations is based on a failure to communicate a subjective analysis of the values and meanings that people link to material places. Mason's and the AHEC administrators' conflicting interpretations of the flagpole area, as a public forum category, ultimately was decided by Federal Judge PhillipS. Figa, who linked his interpretation of the values and meanings of the flagpole area to the freedom of speech provisions of the First Amendment of the United States Constitution. Law: Public Forum Doctrine Judge Figa presided over the Mason v. Wolf (2005) case in a bench trial that lasted from February 7 to February 9, 2005; he released his findings of fact and conclusion oflaw on February 15, 2005 (Mason v. Wolf, 2005). Judge Figa interpreted the character, history of use, and physical design of the flagpole area in his public forum analysis, and rejected both Mason's and AHEC's interpretations of the flagpole area. The judge's analysis of the public forum included viewing photographs of the flagpole area and a site visit to the area on February 8, 2005 with members of the plaintiff and defense teams. The judge concluded in his public forum analysis that 16

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"it seems quite apparent that the flagpole area fits the description of a designated public forum" [italics mine] (Mason v Wolf, 2005, p. 1159). A designated public forum is a property the government has opened for expressive activity, treating the property as if it is a traditional public forum (Mason v. Wolf, 2005). The designated public forum classification had allowed AHEC officials to establish Time, Place, and Manner restrictions on expressions in the flagpole area. These types of restrictions, constitutional when narrowly tailored to serve a significant government interest, leave open ample alternative channels of communication. However, Judge Figa ruled that AHEC officials had lacked significant justification to deny Mason, as an off-campus visitor, use of the flagpole area to exercise his constitutionally protected speech rights under the First Amendment (Mason v. Wolf, 2005). In addition, Judge Figa ruled that Feuerborn, as a campus administrator, was on "fair notice" based on the Tenth Circuit and Supreme Court public forum case law that "his conduct in precluding plaintiffs from demonstrating at the flagpole area, at a minimum a designated public area, violated their clearly established constitutional rights'' under 42 U.S.C. 1983 of the Civil Rights Act (Mason v. Wolf, 2005, p. 1165). The judge denied Feuerborn's defense of qualified immunity and awarded Mason $2,000 in damages against Feuerborn for his actions in denying Mason's First Amendment constitutional rights (Mason v. Wolf, 2005, p. 1165). This case, as I 17

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stated in the Introduction is an example of the legal implications that result from differences in the interpretations of campus places as public fora. Public Forum Analysis: Interpretation of PlaceType and Speech Rights The Auraria campus contains buildings, sidewalks, plazas, streets, and courtyards that constitute different types of campus places, which represent different types of public fora. The material features of the flagpole area were narrowly interpreted by the AHEC staff as a non-public forum, based on the physical form of the place. The same place was interpreted by Mason as a traditional public forum, based on his impression of the flagpole's function as a marketplace where he could exchange ideas between his group and Auraria students. In contrast to the other two interpretations, Judge Figa interpreted the overall character of the flagpole area as a designated public forum based on his public forum analysis of the conceptual aspects of the area. The judge's interpretation ultimately resolved the legal conflict between the AHEC staff and Mason by establishing the location and level of speech rights that are constitutionally protected in the flagpole area on the Auraria campus. The Mason case and Judge Figa's opinion are examples of how the Public Forum Doctrine is used by federal judges to interpret place-types as locations of individual speech rights on higher education campuses. The Public Forum Doctrine evolved out of judicial analysis of the First Amendment clause to protect speech rights of individuals on public property. Over time the Supreme Court and lower 18

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federal courts have expanded the Public Forum Doctrine to classify public places as traditional, designated, limited, and non-public fora categories, when interpreting a type of public property that is sought for exercising individual speech rights (Perry Education Ass'n v. Perry Local Educators' Ass'n, 1983). Each ofthe public forum categories defines constitutional standards on the governmental authority to restrict speech, while defining the protection of individual speech rights on public property. The constitutional standards of Time, Place, and Manner speech restrictions apply to all public property, including that identified as a non-public forum, which the Supreme Court has identified as "no forum at all" (Ark. Educ. Television Comm 'n v. Forbes, 1998, p. 678). According to legal scholar Lawrence Tribe (1988), "The public forum represents areas within which tolerance for inhibitions on speech, petition, and assembly is at a minimum and government's burden of justification at its highest" (p. 684). Public forum categories are place-types that identify levels of speech rights on public property; whereas, the Public Forum Doctrine is a constitutional doctrine that is not applied to speech conflicts on private property. Judge Figa's classification of the Auraria campus flagpole area as a designated public forum is an example of how "court interpretations actively produce space" through court decisions (Blomley, 1994, p. 45). The judge's court opinion includes public forum case law to identify how he interpreted the flagpole area as a designated public forum. Moreover, his judicial opinion as case law was a limited 19

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means to communicate "fair notice" on how the flagpole area is judicially interpreted as a designated public forum on the Auraria campus. Judge Figa s public forum classification in the Mason v. Woif(2005) case applied specifically to the flagpole areas as only one type of place on the Auraria campus. The public-forum classification of other places on the campus as public fora and other campus places across the country in general, is not easily determined by reading one public forum case. Judge Figa s opinion does not specifically identify the boundaries of the designated public forum around the flagpole area, nor does it distinguish the public forum status of the other types of places on the Auraria campus. Statement of the Problem The United State Supreme Court has established the Public Forum Doctrine as a legal precedent in constitutional law. However differences in the interpretations of campus place as public fora have generated confusion over locations where First Amendment speech rights are constitutionally protected on public higher education campuses. The speech-conflict litigated in Mason v. Woif(2005) is an example of the confusion over the interpretation of campus place-types as public fora on higher education campuses. The confusion and differences over where campus place-types correspond to public forum categories has not been addressed in a comprehensive judicial decision. The judicial interpretations of different campus place-types vary across the federal circuits based on the different campus place-types where speech conflicts occur on 20

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higher educational campus Individuals and institutions that are clarifying the public forum category of a campus place-type must synthesize a multitude of public forum judicial opinions to determine the public forum category of different place-types. The conflicting interpretations over campus place-types as public fora and the time, place, and manner restrictions on speech on higher education campus can ultimately result in the filing of a civil complaint in federal court. The complaint is filed by an individual or individuals alleging that the educational institution has violated their constitutional rights. Eventually the civil complaint is decided, in part, by the judicial interpretation of campus place-types to produce public fora on higher education campuses. Case law analysis is the only option available to forecast how a judge will interpret a campus place-type as public fora to settle or negotiate a campus speech conflict. The federal judicial system is based on adjudicating legal disputes in court with the resulting decision serving to produce constitutional standards as case law. The case law standard does not afford individuals or institutions the opportunity to resolve disputes by presenting a judge a real or hypothetical scenario to determine how a court would rule in a dispute. Federal courts do not provide guidance to a speech conflict unless it is presented to the court in a legal filling nor do they address hypothetical legal conflicts in their court case decisions. The current public forum case law does not provide a specific typology or standard on how campus place is judicially interpreted as public fora. The lack of a standard objective description 21

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results in confusion and conflicts over where individuals can exercise their freedom of speech rights on higher education campuses. The lack of a guide to understand how judges interpret campus place as public fora in constitutional law has significant consequence in the individual use and institutional management of campus places A Typology that identifies and illustrates the judicial interpretations is an important reason to classify and inventory campus place-types as public fora in order to address the significant legal implications in the use and management of campus place. Campus Space Management The lack of a place-typing method to identify the judicial interpretation of campus place as public fora makes it difficult for campus administrators to determine whether their management of campus space is within the constitutional standards of the Public Forum Doctrine. The management of campus space is considered one of the most important responsibilities in higher education administration (Knowles, 1970). Campus space symbolizes internal pressures, as well as external constraints that shape the growth of a comprehensive university (Compton, 2000; Lanier, 1968), because contemporary campuses are managed in increasingly complex legal environments (Bickel & Lake, 1999). Courts did not general apply prevailing constitutional protection of individual rights to higher education students until the 1960s when court decisions began shifting the legal principle of higher education attendance from a privilege to a right (Kaplin & Lee, 2006a). Following the 1960s, the emerging theory of public space 22

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(Nadal, 2000), the free-speech movement (Sanford, 1985; Tigar, 1966), and the Public Forum Doctrine (Bausch 1995; Travis, 2000) began to influence the court's deference to unchecked authority for campus administrators to manage students, speech and space on public higher education campuses (Forbes, 2001 ). The legal wall separating the higher education campus from the Constitution continued to erode during the 1970s when numerous social developments challenged campus administrators management of restricting speech expression and activities on higher education campuses, including: widespread student protest (Knowles 1970; Miser, 1988), the demise of in loco parentis (Altschuler & Kramnick 1999; Stamatakos, 1990; Zeiner, 2005), and the passage of the Twenty-sixth Amendment to the United States Constitution (which lowered the voting age to 18). As a result, in 1972 the Supreme Court opined: Colleges and universities are not enclaves immune from the sweep of the First Amendment. .. The precedents of this Court leave no room for the view that because of the acknowledged need for order First Amendment protections should apply with less force on college campuses than in the community at large. (Healy v. James, 1972, p. 279) The Supreme Court confirmation that individuals are able to retain their constitutional rights when entering campuses is balanced against the control of campus operations to preserve the campus mission and provide for the safety of the campus community. 23

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Campus Safety and Security Campus administrators face legal challenges to maintain the integrity of the campus mission and sense of place. For example, campus shootings at the University ofNorthern Illinois (Weekly, 2008), Louisiana Technical College (Dyer, 2008), and Virginia Tech (Davies, 2008; Earls, 2002; Kingsbury, Brush, Green, & Schulte, 2007) have heightened campus safety concerns across the country. Anxiety over campus shootings, combined with concerns about possible terrorist attacks (Dyer, 2000; Farrell & Fuller, 2003; Yeager & Fields, 1999) and personal safety (Sells, 2002), has challenged administrators to maintain legally safe and secure campus environments; while, at the same time, to preserve institutional values of open access and to protect individual liberties in a democratic society (Halcom, 2008). Higher education institutions that fail to take appropriate steps to address safety and security concerns face legal lawsuits (Foster & Lipka, 2007), government fines (Herrmann, 2008; Lipka, 2008), threats to their reputation (Murphy, 2003), and decreased student enrollments (Hatley, 2007; Kelsay, 2007). Preserving institutional values of open access and individual liberties is still expected of campus administrators in managing their campuses (Halcom, 2008). Critics assert that space management approaches to increasing campus security actually erode the academic climate and diminish the exploration of ideas on higher education campuses (Harward, 2007). The constitutional requirements to uphold public forum standards require campus administrators to maintain their constitutional 24

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responsibility to protect both individual First Amendment rights, while at the same time balancing institutional campus safety. The approach by campus administrators' to achieving this balance is to segregate conflicting activities into different places on campus. Campus Free-Speech Zones Campus administrators respond to conflict over the use of campus space by implementing free-speech zones and restricting specific activities in campus spaces (Silverglate & Gewolb, 2002; Zeiner, 2005). The administrators have created other types of zones, including: bicycle "dismount" zones for pedestrian safety (Pinney, 1992), "no smoking" zones to promote a healthy environment (Abuse, 1993), "dog leash" zones for animal control (Brottman, 2004), "surveillance" zones for crime detection (Young, 2003 ), "auto free" zones for pedestrian safety (Marcus, 2001 ), and "gun free" zones for campus safety (Street, 2001 ). Beyond any other type of zone or restriction, administrators face the greatest number of challenges from students and visitors in their effort to create campus free speech policies and free-speech zones (Hendrickson, 1991; Knight, Maloney, Snyder, & Bradley, 2005; Zeiner, 2005). Speech policies pose specific problems in space management on higher education campuses when restrictions over public speech unconstitutionally violate an individual's First Amendment rights (Knight et al., 2005; O'Neil, 1997). 25

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Campus administrators have been sued successfully for violations of the First Amendment of the U.S. Constitution when campus free-speech zones or speech policies unconstitutionally have violated an individual's First Amendment rights (Davis, 2004). As a result, campus administrators who lack sufficient understanding of the Public Forum Doctrine and the United States Constitution may respond to a freedom of speech conflict with an unconstitutional action that restricts individual speech rights and results in a federal lawsuit. Problem Statement Summary The conflicts over speech on higher education campuses exemplifies John Stuart Mill's (1956) principle argument in "On Liberty" that a civil society always has had to negotiate the struggle between individual liberty and social authority. According to Mill ( 1956), the measure of social liberty is defined by the nature and limits of power legitimately exercised by society over the individual. Similarly, I assert that the judicial interpretations in public forum cases are a gauge of how judges negotiate the protection of individual liberty with institutional authority in the management of the campus. ln these cases the nature and limits of the institutional power over the individual is represented in the campus as a multidimensional type of place. The judicial interpretation of physical place as public fora on higher education campuses is not clearly illustrated or identified in court cases. Furthermore, traditional campus space management guidelines developed in the 1960s, to promote 26

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efficient use of operational space (Derx, 1987), were not designed to address managing spaces classified as public fora on higher education campuses throughout the United States The absence of descriptions and visual representations of campus places classified as public forum categories has resulted in confusion and conflicts over the individual and institutional interpretation of where individual rights of expression are protected by the First Amendment on higher education campuses. Judge Figa admonished Feuerborn for his lack of knowledge of current interpretations and constitutional standards for protecting individual speech rights in public forum case law based on the Tenth Circuit and Supreme Court public forum case law. The failure to remain knowledgeable of"fair notice" and public forum case law is an example of why it is important for campus administrators continually to scan public forum case law and literature, so they may remain knowledgeable of prevailing constitutional standards of individual speech protections and institutional speech restrictions that are constitutionality allowed in public fora. The difficulty for individuals and administrators is determining how judges interpret the character of campus place-types as public fora The Public Forum is a complex legal doctrine that is still evolving, based on constitutional conflicts as well as conflicts over interpreting speech rights for a place as either public property or a government institution. The differences in interpreting campus place have generated different constitutional standards of speech rights on higher education campuses 27

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Interpretations of campus places are not aided by a comprehensive public fora place-typing system, which can reduce conflict over interpretations of the campus as a type of place and the place-types within the campus boundaries. An objective place typing system can identify values and meanings associated with different expectations of constitutional standards for speech rights in public places on higher education campuses Therefore, the problem addressed in this dissertation is the need for a Campus Place Public Forum Typology for individuals and institutions to systematically type the locations and levels of constitutional speech rights by campus place-type based on a case study of the judicial interpretations of campus places as public fora. Purpose of the Study The purpose of this dissertation is to broaden the laymen's understanding of the Public Forum Doctrine, by creating a typology of campus places judicially interpreted as public forum categories. The conflicts and judicial opinions over exercising speech rights on campuses do not result in a demarcation of physical boundaries for identifying the border between individual liberties and institutional authority. This research supplements public fora case law by identifying and describing campus place-types as public fora on higher education campuses. The Public Forum Doctrine may appear as an abstract construct to individuals reading case law on judicial interpretations of campus places; therefore, I designed a Campus Place 28

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Public Forum Typology that describes where campus place-types are interpreted as public fora categories in public forum analysis. I used this Typology in illustrating and transforming the abstract concept of Public Forum Doctrine into concrete descriptions of physical locations, which court judges interpret as public fora. Further, I supplemented the Typology with photographic and other descriptive representations to provide a visual representation of campus place-types that have been classified as public fora on higher education campuses. Justification of the Study Speech conflicts on public places have generated substantial case law and case law research on the application of and policies regarding constitutional protections of individual expression on public property. Any violation of these constitutional rights subjects government officials to challenge under Federal Law 42 U.S.C. 1983 Civil action for deprivation of rights ("Civil Rights Act," 1871 ). Judge Figa' s decision to award Mason personal damages against Feuerborn emphasizes the importance of campus administrators developing awareness of the prevailing constitutional standards of the Public Forum Doctrine. The evolution of the public forum through court rulings and changing social conditions has generated multiple interpretations of campus place as public fora categories on higher education campuses. Judicial interpretation in public forum opinions may vary significantly in application of public forum analysis and ultimate determination of public fora categories. The Mason v. Woif(2005) case is an example 29

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of confusion when interpreting campus place-types as different types of public fora. Therefore, I conducted research on campus speech policies on how the First Amendment and Public Forum Doctrine have been applied on higher education campuses. To date, there is little research on how judicial interpretations of campus place on higher education campuses produce public fora. My research method of analyzing and comparing the content of different judicial opinions will identify and describe how judges conduct place-typing assessments of campus places in their public forum analysis in the selected public forum court cases. This is the first study to use a place typing model in combination with content analysis of judicial interpretations of campus places for examining how public forum decisions vary across the country. Significance ofthe Study This research examined the relationship between campus physical places and constitutional speech rights. The Mason v. Wolf(2005) court case is a foundation for studying the Auraria higher education campuses as a case study of how the character of campus place-types are interpreted judicially as categories of public fora on higher education campuses across the county. The Campus Place Public Forum Typology that I create in this research provides institutions and individuals an objective place typing method to understand and forecast how a judge will interpret the character of a campus place as public fora in a speech dispute. The judicial interpretations of campus place are not standardized in the federal circuits; however the Typology 30

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provides a place-typing method to identify how judges interpret campus place-types as public fora. The T y pology is also designed to apply the campus place-typing model to any public higher education campus in the United States. An additional significance of this research is the use of photographs and images of campus place-types as visual representations of the public forum categories to supplement the Campus Place Publi c Forum Typology. The Typology uses visual representations to illustrate and map campus place-types as public fora. The campus place-type models and the Campus Place Public Forum Typology developed in this research broadened the understanding of how and where campus place-types are interpreted as public fora based on judicial interpretation of campus place in different federal circuits across the country. Each of the public forum categories proscribe constitutional standards for institutions to manage publicly owned resources and individual rights for using those resources. The visual images will assist campus administrators and individuals in identifying how campus place types are interpreted as public fora on different campus across the United States. Auraria As a Case Study This case study examined the Auraria campus regarding the exercise of First Amendment rights on public higher education campuses as well as the legal implications of judicial interpretation of campus place for determining public forum categories. Judge Figa's examination of the flagpole area's character reflects the importance of assessing campus place-types when determining public forum 31

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categories. I examined the history of Auraria as a type of place to identify the dominate institutions and social factors in the flagpole area's transition as a city sidewalk, campus plaza, and designated public forum. The Auraria campus has a contextually rich history that is unique among public higher education campuses in the United States. The history of the Auraria location is an intriguing backdrop for inspecting critically relevant features regarding the application of public forum for higher education campuses. What makes the Mason v. Wolf(2005) court case so interesting is the question of how the Auraria campus compares in history and character to other higher education campuses across the U .S. The Mason v. Wolf(2005) judicial opinion as a legal place-typing process provides insight into the continual development of the Auraria as a type of place and flagpole area as specific place-type. This is the first case study on the Auraria campus that examines the different transitions and interpretation of the flagpole area as a place-type based on the production of Auraria as a multidimensional place. This research will examine the different transitions and interpretation of the flagpole area as a place-type as a city sidewalk, campus plaza, and designated public forum. The Campus As a Multiple Definition of Type of Place The word campus is Latin for "field" (Latin/English, 2002). Campus was first used to describe the grounds of a college in a letter written in 1774 by a College of New Jersey student. The student's letter described a protest by fellow students against English rule: "Last week to show our patriotism, we gathered all the steward s winter 32

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store of tea and having made a fire in the Campus we there burnt near a dozen pounds tolled the bell and made many spirited resolves" (as qtd. in Leitch 1978 p 74). Since the late 1700s the definition of the word campus has expanded from a "field into a multidimensional concept of physical social and organizational systems that interact simultaneously to create and maintain a distinctive learning environment (Strange & Banning 2001 ) Contemporary definitions of campus include: (a) grounds and buildings of a university college or school; (b) a university college or school viewed as an academic, social, or spiritual entity ; and (c) grounds that resemble a campus hospital campus or landscaped corporate campus (Merriam Webster 2004) I examine the multiple definitions of the campus as a physical social, and an organizational place in order to identify the evolution of the character of the contemporary higher education campus. This research is structured to examine and identify how the judicial interpretation of the campus as a multidimensional place when the public forum analysis is applied to higher education campuses. The research questions are designed to examine how courts balance the ideal and real images of the campus as a type of place to ensure that individual First Amendment rights are not unconstitutionally suppressed on higher education campuses in the United States of America. 33

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The Public Forum Doctrine The constitutional question in Mason v Woif(2005) was legally decided by Federal Judge PhillipS. Figa's public forum analysis of AHEC's authority to impose Time, Place, and Manner speech restrictions on the use of the flagpole area on the Auraria campus. Judge Figa's judicial interpretation ofthe flagpole area as a designated public forum overruled both Mason's and AHEC's interpretation of the campus place-type. The judge's public forum analysis included his interpretation of the character of the flagpole area, determining that it was apparent that the flagpole area fits the description of a designated public forum category The public forum analysis process that the judge conducted is a legal place-typing inquiry that ultimately interprets public places as public fora within the Public Forum Doctrine. The Public Forum Doctrine evolved out of judicial analysis ofthe First Amendment clause to protect speech rights of individuals while on public property. Over time, the Supreme Court and lower federal courts have expanded public forum analysis to classify public places as traditional, designated, limited, and non-public fora categories when interpreting the type of public property sought for communicating individual expression. Each of these public forum categories defmes the legal regulations on the institutional authority to manage public property, as well as levels of protection of individual rights of public expression. In addition, federal courts have analyzed the character or nature of place, including but not limited to: (a) traditional use of the property (Hague v. C./.0., 34

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1939), (b) character of the property at issue (Perr y Education Ass 'n v. Perry Local Educators' Ass'n, 1983), (c) pattern of normal activities (Grayned v Rocliford, 1972), and (d) organizational nature of the forum (Cornelius v NAACP Legal Defense and Education Fund, 1985) when interpreting the type of public place as a category of public fora. This research expanded recognition of how public forum analysis of campus places, as public fora, is a process of interpreting and typing campus places as locations where rights of freedom of speech rights and restrictions are balanced within the First Amendment of the United States Constitution. Summary of Research Significance The location where constitutional speech rights are protected or restricted in the use of public property is confusing for lawyers as well as lay people. Examining public fora as place-types is an innovative approach to identifying and describing the locations where speech rights that are represented as multidimensional places on higher education campuses. Thus, this research clarifies the public forum as an abstract concept of constitutional law, and provides a physical description of campus place-types as public forum categories The results reduce confusion on how Time, Place and Manner speech restrictions are applied within constitutional regulations meant to ensure that individual First Amendment rights are not suppressed unconstitutionally on college and university campuses in the United States of America. This research examined how judicial interpretation of campus places in public forum analysis is a place-typing method in constitutional law. 35

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This dissertation significantly expands the study of place as a legal multidimensional physical iocation. Research on campus place-types as public fora provides a research method for advancing public forum analysis as a concrete method of place-typing, rather than as an abstract legal concept. This method provides to professionals, who create campus places, a post-occupancy analysis of how places are interpreted by court judges as legal places subject to constitutional regulations. For future research, the Campus Place Public Forum Typology also can serve as a model to compare public forum analysis of campus place-types to non-campus places. Theoretical Model: Place Typing Franck and Schneekloth' s ( 1994b) model of place-type is the primary theoretical model used in this dissertation research. They explained that "human beings structure environments by creating and using a multitude of categories of places and spaces, often called types" (1994a, p. 9). The place-types model corresponds to the public forum analysis conducted by judges when they determine the type of public forum categories in their judicial opinions. The purpose of place typing assessments is to uncover the social relationships that intersect within places and to expose underlying power relationships within the physical location (Franck 1994) I combine the place-typing model with the content analysis of judicial opinions to examine how judges interpret the character of multidimensional campus places in their public forum analysis as a legal assessment of place-types. I will use 36

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this research to identify and illustrate the location and level of constitutionally protected speech rights by the character of campus place types. Place Typing and Public Forum Analysis The term place in the Public Forum Doctrine is associated with the legal theory of property, which is defined as "any external thing over which the rights of possession, use, and enjoyment are exercised" (Black's Law Dictionary 2009, pp. 1335-1336). As a legal theory, the Doctrine does not directly address the social theories on the multidimensional aspects and attributes of a place. Analysis of the relevant literature on how place is produced as a social process helps to explain how judges' interpretations of campus places, as public fora in public forum analysis, is a place-typing method. An examination of judicial interpretations of campus place benefits from a theoretical model of place that incorporates a critical analysis of place-typing with public forum analysis and the Public Forum Doctrine The process of applying the broader concepts of material imaginal, and conceptual aspects of place-types to the Auraria campus is place-typing a physical location as a multidimensional place. The aspect of place-typing is similar to the Geographical Information Systems (GIS) model of linking layers of data that constitute physical locations. This research provides a context in which judicial interpretation of campus place-type occurs in the public forum analysis of a campus place. The attributes model of the form, use, and meaning of place is similar to the Global Positioning System (GPS) as triangulation of place attributes that identify a 37

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specific set of relationships in a physical place. I explain the significance and differences between the aspects and attributes of a place in the following sections. Aspects of Types of Places Franck and Schneekloth' s (l994a) analysis of place is a theoretical model for revealing commonalities and differences in material places not previously obvious or apparent. The process of creating categories of places is a human endeavor designed to structure knowledge by creating a systematic order of places (Franck & Schneekloth, 1994b ). The authors wrote that the place-typing process occurs in the "material, imaginal, and conceptuaf' world of human experience ( 1994b, p. 16). They described the "material, imaginal, and conceptuaf' aspects of place-typing as: Material place types exist in the material world of matter and are the socially constructed, usually named, kinds of places we occupy or observe in the world. Material places are created by the dominant forces in society to represent and reproduce the dominant order and values of the society at a period of time. Imaginal place types exist in our aspirations, hopes, fears about the world and our place in it. Imaginal place types include archetypes and ideal types, are made of words, ideas, and beliefs, representing imagined, remembered, or otherwise cognitively constructed places. Conceptual place types exist in our thinking, ordering, analyzing, and reading of the world. Conceptual place types include classification systems, typologies, and typological analysis, are the intellectual construct used for description, explanation, and prescription. (1994a, pp. 16-23) I use the term types of place to examine Auraria, the multiple definitions of the word campus, and the Public Forum Doctrine to gain insight into the broader 38

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contextual place transformation ofthe identity, image, and interpretation of the flagpole area by different institutions and individuals. Types of Place Operations The operating process of place plays a vital function in producing, shaping and communicating place-types. Franck and Schneekloth (l994b) explained that types of places operate in society through the following five physical and mental actions: (1) Occupying and engaging in activities in the place produce and reproduce meanings for place-types; (2) Naming a place shapes our imagination, behavior, perceptions, interpretations, interactions, and expectations of the relationships over the use and meaning of the place; (3) Imaging merges the material and imaginal aspects of place as images in our mind. The images are idealized representations and experiences that guide daily spatial practices; (4) Inventing and modifying involve acts of ordering and reordering by inventing and developing the world in different categories to structure the material world to accommodate space practices; and (5) Representing the material and imaginal places through words, images, and fabrications is a significant form of power to influence others on how a place functions (p. 23). 39

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The analysis of place I this dissertation is also an examination of how a social process produces types of places that are comprised of specific place-types. Similarly, Judge Figa's interpretation of the flagpole area was a place typing assessment of the overall context of the Auraria campus as a type of place and the flagpole area as a place-type. In his public forum analysis, he applied a more conceptual type of place typing assessment to categorize the flagpole area as a public forum. His place-typing assessment included an examination of the attributes of the flagpole area to systematically determine how the location was similar to other places interpreted as a category of public fora. PlaceType Attributes The specific place-typing process includes a micro-assessment of conceptual types of place to produce categories of place-types. Franck (1994) specifically identifies form, use, and meaning as three attributes that are conceptually used to type specific place-types. She added: "Types are categories of place that we group together because the places are alike in some way, and types are specific places that we treat as members of categories" (p. 345). Form includes both long-lasting and temporary physical attributes used as intervention in order to create and furnish a place, either inside or outside. Use describes both general and specific activities performed in the setting or place. Meaning attributes are practical and symbolic messages that include both the latent and manifest purposes of the place. 40

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Franck (1994) declares that controversies over meaning and use arise because of different interpretations of a place. She asserts that the lack of one to one correspondence between the attributes of form, use and meaning results in conflicts over the interpretation of a place. Central to this research analysis of the place-typing conducted by Judge Figa, in his public forum analysis, is his interpretation of the character of the flagpole area when he classified the place as a designated public forum. His interpretation of the conceptual nature of the flagpole area as a public forum category, corresponds to the place-typing method in Franck's (1994) place typing model. Place-Type Summary Franck and Schneekloth' s ( 1994b) place-typing model is a theoretical framework for interpreting how multiple dimensions of place represent how social and mental actions in society operate to produce place-types. The place-type model builds on the understanding that interpretations of place are neither static nor one dimensional. The place-type theory is a model that examines differences in the interpretation of place based on place-typing methods. Judge Figa's interpretation of the character of the flagpole area on the Auraria campus is a critical factor in his public forum analysis. His place assessment of the form of the Lawrence and Tenth Streets' sidewalks, and how pedestrians use the intersection as the crossroads of the campus, influenced his interpretation of the meaning of the flagpole area as a designated public forum. Judge Figa's public forum 41

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analysis ofthe flagpole area included an assessment of the broader contextual aspects of the location as a former city street and a higher education campus to conduct a more specific micro analysis of the campus place attributes ofthe flagpole as a physical location within the campus. The judge ultimately interpreted the place-type attributes associated with the flagpole area to rule that the AHEC staff did not have a justifiable reason to prohibit non-students from expressing their First Amendment rights of expression in that area. The lack of a typology describing campus places that are judicially interpreted as public forum categories has created an uncertainty about the locations and levels of constitutional protections of freedom of speech. This research on the Public Forum Doctrine examines the judicial interpretation of the campus places as public fora. The purpose of this research is to create a place-typing method and typology that represents campus places as public fora. The typology will improve the "fair notice" communication of the standards ofhow the Public Forum Doctrine is applied to higher education campuses within the Tenth Federal Circuit and across the United States. Research Questions Judge Figa's opinion answered the initial question on constitutional protections for private speech on government property; yet it generated several more questions on how the public forum analysis may be applied to other campuses across the country. The judge's interpretation of the Auraria campus flagpole in Mason v. 42

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Woif(2005) as a public forum analysis is a legal place-analysis process The primary research question of this dissertation, therefore, is: "How do judicial interpretations of campus place in constitutional law produce public fora on public higher education campuses in the United States of America?" This primary question was designed to examine how judges interpret physical places when they conduct public fora analysis in their judicial opinions. The following secondary research questions were framed by the primary question: In the Mason v Wolf(2005) case, how did Judge Figa's interpretation of the flagpole area as a type of place produce a public forum? How do judicial interpretations of campus places in other campus court cases produce public fora across the different federal court circuits? I answered these secondary questions by analyzing the content of federal judicial opinions of court cases that involved conflicts over speech restrictions on public higher education campuses across the United States. These questions were the foundation of inquiry to identify the character and types of campus places that are judicially interpreted as apparent categories of public fora Research Method This research is not posed as much to solve a problem but to address a question involving the relationship between place and power on a university campus. 43

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The three questions in this research were designed to address Judge Figa's statement that public forum case law provides "fair notice" of constitutional standards in the management of public places. The constitutional standards represent the power of the First Amendment to balance the institutional authority of the AHEC staffto manage the flagpole area and the Mason's individual autonomy of exercise his freedom of speech in the same place. The three research questions address a both a legal and factual problems in determining the legal reasoning judges use to interpret and identify campus places types as public fora. The second issue is how to create, communicate, and replicate the judicial decisions in a typology that represents how judges interpret the campus place types as public fora. The conventional approach to addressing a legal question in constitutional law is to research the applicable case law to identify the legal reasoning and precedents presented in the judicial opinions to support the court's decision in resolving the legal dispute. Studying court cases provides an opportunity to create a research model to examine how conflicts are resolved in the American legal system (Cohen, 1985). In this dissertation I combine a legal and qualitative research method to address a legal question on how public fora as physical places are produced through judicial opinions. The legal research begins with identifying the legal questions and dividing the questions into legal and factual subjects. The subjects are analyzed using legal and 44

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non-legal data to identify patterns in the development of the case law to answer the initial questions. In order to identify how the judges interpret campus place as public fora, I will conduct a content analysis of federal court cases to examine how judges employ and communicate their place-typing method in their opinions. I analyze the judicial opinions to identify legal principles, language and precedents that are incorporated in the public forum analysis of the selected court cases. The content analysis method is a non-conventional legal research approach to study a broad range of legal subject areas that have social, political, and economic connections and applications (Hall & Wright, 2008). I expand the legal research method by including Franck and Schneekloth's (1994a) theoretical place-typing model in order to examine both legal and factual judicial interpretation of the campus as a multidimensional place. I combine the legal and qualitative analysis to exam which dominant characteristics of the campus place types influence the public forum analysis and consequently the outcomes of the federal court cases. The following diagram (Figure 1.6) is a visual representation of the research questions on how the judicial interpretation of campus place uses place typing assessments in the public forum analysis of campus place as public fora. 45

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Multidimensional Place Campus Place -Type Judicial Place Interpretation Typing Assessment Public Forum Analysis Legal Classification Public Forum Category Figure 1.6 Place Type Assessment and Public Forum Analysis Model I use the Multidimensional Place-Typing Model, content analysis of the selected cases, a case study on Auraria, the related place assessments of the flagpole area, and visual representations of campus place-types to create a Campus Place Public Forum Typology that links the social constructions of multidimensional places with legal interpretations of places as public forum categories. This research employed a multidisciplinary approach to identify the relationships between the law and place that are not apparent in the literature, case law or general observations. The research method is a unique opportunity to examine the campus as a multidimensional place by combining a legal method with a planning approach to examine a practical problem. The data analyzed for this research are judicial opinions of court cases of higher education institutions involved in First Amendment speech conflicts in which the dispute was over the use of campus outdoor areas. This research on the place-typing assessment of physical places that are the subject of judicial investigation assists in identifying, classifying, and representing the location and level of constitutionally protected individual speech 46

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rights on higher education campuses. Figure 1. 7 is a visual description of the research methods used in his dissertation. lnll oduction M aso n v \\'olf Cotui C ase l I I Types o f Place Type.> of Place Asp"ct; 1\ !at e naL hna giml. and C:on ccplna l I Amana l I Multipl e Definitions of the L_____ l Flagpole Area Place-Type Mt>del Lit.;rattue 011 Place and PuhllcFomm Oochine I l Place-T ypes Altubnks Fomt Use. Meaning :uod L e::-."lt-;-Ncxus :\CC';!SS Campus Place Public Fonuu T ypo l og" I Apply th e Typo l ogy t o the A mari a C ampu s Place-Types C a s e Search Conl.c!nl Analyst s of Sdected l Case s Figure 1. 7 Research Methods Diagram Chapter 1 contains the background information on the Mason v. Woif(2005) federal court case and the legal and factual issues that are posed as a research question. Both the constitutional precedent of the Public Forum Doctrine and Franck and Schneekloth's (1994) place-typing model is introduced to identify the theoretical concept that place is a multidimensional legal and social construction. 47

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In Chapter 2, the Literature Review contains different types of theories and literature on the multidimensional aspects of place. I expand on Franck and Schneckloth's ( 1994) place-type model as a comprehensive theoretical model to examine how multidimensional interpretations of physical places reveal how ditierent place-types are produced and operate in society. I create a Multidimensional PlaceTyping Framework that integrates Franck and Schneckloth's (1994a) place-typing model with other place and space theories, in order to examine how the place-type theory interconnects in the literature regarding place. I design the Framework to examine how the multidimensional aspects of place are interpreted and applied as place-typing methods across different academic disciplines. I apply the Framework to in Chapters 4, 5, and 6 to conduct an assessment of the three types of place that describe the flagpole area as a multidimensional place on the Auraria campus. The three place descriptions are Auraria (Chapter 4), the multiple definitions of the word campus (Chapter 5) and the evolution ofthe Public Forum Doctrine into a legal precedent (Chapter 6). Chapter 3, Research Methods, I briefly discus the federal judicial system and how the development of constitutional law is produced through judicial opinions that from foundation of case law. In this chapter I include a brief explanation of the principles of legal research, and the research rationale and process used in this dissertation. This is an importance section to inform the reader of the underlying problem in this research is a lack of a single comprehensive public forum case that 48

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applies in all circuits that specifically defines and describes all types of place-types as public fora. (a little more on what I did-the importance of reader to understand that the court system is based on jurisdictional boundaries that are identified as circuits. I explain Hall and Wright's (2008) research method of analyzing the content of judicial opinions begins with a selection of cases, followed by systematically coding the characteristics of the court cases. Both processes were part of my search and sorting of court cases that involve the public forum analysis of campus places to resolve speech conflicts on higher education campuses. The third part of this content analysis research method is analyzing the coding results of the public forum judicial optmons. The legal research sources used for this study included legal journals, law reviews, case reporters, and the ninth edition of Black's Law Dictionary (Gamer, 2009); as well as online legal databases, primarily LexusNexus to locate and identify legal decisions. This research included significant review and analysis of public forum jurisprudence, in order to assess the significance of the development of public forum as a legal concept into a contemporary legal doctrine in constitutional law. In Chapter 4, I research the material, imaginal, and conceptual place aspects of the Auraria campus to provide a multidimensional perspective on the Auraria campus's historic development. I provide a history of the Auraria campus to identify the key transitions periods in how the area was identified as a city, community, and campus. For Chapter 5, I examined the multiple definitions of the word campus, to 49

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discuss the significance of a campus as a type of place in the United States. Chapter 6 consists of a case law review of the history of the Public Forum Doctrine as a legal precedent to identify the three development phases of public forum as a constitutional place. In Chapter 7, I use the place-typing assessment of the flagpole area to analyze and classify the content of the Mason v. Wolf(2005) opinion. I analyzed the content ofthe Mason v. Wolf(2005) court opinion to address the secondary question which is specific to Judge Figa's interpretation of the Auraria campus flagpole area as public fora I use the information from Chapters 4, 5, and 6 to create a place-typing assessment model, Flagpole PlaceType Model, to illustrate a broader contextual overview of the flagpole area as a multidimensional place that consists of different place-types. The examination of the place aspects of the each of the three subject areas provides broader contextual insight into the transformation of the place identity of the flagpole area. My analyses identified the significant place assessments used by Judge Figa in his interpretation of the flagpole area. The content analysis of Judge Figa's legal opinion in Mason v. Woif(2005) is the central case for creating a baseline set of campus place-types attributes to compare the judicial interpretations of campus place-types in similar court cases that have involved campus places categorized as public fora I use Mason (2005) as the central case to identify and create a legal place-typing model on the Auraria campus to compare to the selected cases in Chapter 8. I evaluate the content analysis of the 50

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Mason v Woif(2005) opinion with the other similar federal court cases that have a fact pattern involving the judicial interpretation of campus places in public forum court cases The collection and analysis of other federal cases and circuits addressed the third question on how to identify commonalities and differences in how federal judges apply the public forum analysis to different campus places. Chapter 8 contains the content analysis of selected public forum court cases in continuing the development of the Campus Place Public Forum Typology. Judge Figa's legal opinion is compared to other judicial opinions on campus public forum analysis in order to identify how his interpretation of the Auraria campus flagpole area, as a place-type, compares to the other public forum analyses of campus place types in the selected campus public forum court cases. In Chapter 9, I analyzed the judicial interpretations from the previous chapters to create the Campus Place Public Forum Typology. I applied the judicial interpretation of campus place from the Mason v Wo[f(2005) case in Chapter 7 and selected cases in Chapter 8 to inventory, categorize, and incorporate the case law findings into the Campus Place Public Forum Typology. I also analyzed and compared the judicial interpretations in order to identify the locations and levels of individual First Amendment rights and institutional restrictions within campus place types. The research findings, implications, and conclusions of the dissertation are detailed in Chapter 10. This chapter includes my analysis of judicial interpretations of 51

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campus place as public fora in the Mason v. Wo(f(2005) court case and the selected public forum court cases at other public higher education campuses across the United States. I reviewed the selected cases, to broaden the understanding of how judicial interpretation of campus place in public forum analysis is a method of judicial place typing. I identified and described how physical locations are judicially interpreted and produce public fora as a type of multidimensional legal place. I concluded the chapter with a discussion on how to use the Campus Place Public Forum Typology of campus place-types as public forum categories. I discussed how visual representations of campus places in public fora cases, benefit understanding where speech rights on higher education campuses are protected constitutionally Then I summarize the major points of the dissertation and identify future research to apply the place-type public forum model to non-higher education campuses. Overview ofthe Study This dissertation is a legal. case study on the Public Forum Doctrine is organized into ten chapters as outlined below. Chapters 1, 2, and 3 contain the Introduction, Literature Review, and Research Method for developing the theoretical foundation of place-typing. Chapter 1 includes an introduction to the Mason v Wolf (2005) federal court case, the background of the research study, the research problem and questions, statement of the problem, and the purpose, justification, and significance ofthe study. 52

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In Chapter 2, I introduce the Multidimensional Place Typing Framework to integrate Franck and Schneekloth's (1994a) theoretical model with other place and space theories. I use the Framework to interconnect the different scholarship and theories on the multidimensional aspects of place in the literature. I applied this Framework when examining the place identity of the flagpole area as Auraria, a campus, and a public forum. I conducted a place assessment of the development and transition of Auraria as a multidimensional place in Chapter 4; the multiple definitions of the word campus in Chapter 5; and the evolution of the Public Forum Doctrine into a legal precedent in Chapter 6. I incorporated the information from Chapters 4, 5, and 6 to provide a broader contextual understanding of the flagpole as a multidimensional place in the subsequent chapters in the dissertation In Chapter 7, I analyze the content of Judge Figa' s interpretation of the flagpole area in the Mason v. Woif(2005) opinion to identify the place-typing attributes he used in his public forum analysis. I compare the content analysis from Mason v. Woifto apply as a place-typing model to the selected cases in Chapter 8. In Chapter 9, I analyzed the judicial interpretations of campus place from the previous chapters to create the Campus Place Public Forum Typology. I applied the Typology to the Auraria campus place-types to index and map the public fora categories on the Auraria campus. I conclude the dissertation by identifying the research findings, implications, and conclusions in Chapter 10. The dissertation outline is charted in the following (Table 1.1 ). 53

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Table 1.1 Outline of Dissertation Chapter 1 Dissertation Overview Introduction Mason v. WolfFederal Court Case Chapter 2 Multidimensional Place-Typing Framework Literature Review Aspects, Operation, and Attributes ofPlace Types Chapter 3 Content Analysis of Judicial Opinions Method Research Methods Chapters 4, 5, 6 Chapter 4 Chapter 5 Chapter 6 Public Assessment of Types of Auraria Case Definitions of Forum Doctrine Places Study Campus Chapter 7 Content Analysis of the Judicial Opinion in Content Analysis of Mason v. Wolf Federal Court Case Chapter 8 Content Analysis of the Judicial Opinions of Content Analysis Selected Selected Campus Public forum Court Cases Federal Court Cases Chapter 9 Create Campus Place Public Campus Place Public Forum Typology Forum Typology to Apply to Auraria Campus Chapter 10 Research Findings, Implications, Conclusion Limitations, and Recommendations 54

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Definition of Terms Appeal: A request to a superior court composed of a panel of judges, to review a lower court's decision Case: A civil or criminal suit or action. Case Law: Law established by judicial decisions in cases distinguished from law, created by legislation Courtyard: A small outdoor space partly or entirely enclosed by building(s) or other means of enclosures. Designated Public Forum : Public property that is not a traditional public forum but which the government has intentionally designated for expression. Dictum: A statement by the court which extends beyond the issue at bar. The statement is nonbinding but tends to have a strong persuasive effect, by being in an authoritative decision, or stated by an authoritative judge, or both. Doctrine: A principle established through judicial decision. Green or Field: A large, open, grassy area used for formal or informal play. Intermediate scrutiny: A legal standard to determine the constitutionality of a statute or government action that applies to a quasi-suspect classification To determine if a statute or government action passes the test, a court considers whether that statute involves important government interests and whether the law or state action is related substantially to the achievement of important government objectives 55

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Jurisprudence: A body of law dealing with a specific issue or area. Limited Public Forum: Public property created for a limited purpose for use by certain groups or for the discussion of certain subjects. Mall: A shaded walk for promenade by pedestrians, sometimes jointly used by bicycles, public transit, and/or service vehicle. Non-public Forum: Types of public property that by tradition or designation are not dedicated to open communication. Opinion: A judicial written explanation of how a judge reached a decision in any court case. Piazza: A public open space Public Forum: Government owned property where government restrictions, controlling time place, and manner of speech, must not be based on the content of the message; must be tailored narrowly to serve a significant government interest, and must leave open ample alternatives for communication. Precedent: A judicial decision that should be followed by a judge when deciding a later similar case. Quadrangle: An outdoor area surrounded on all sides by buildings. Square: A large open area bounded by buildings, streets, and/or the area at the intersection of several streets Strict scrutiny: A legal standard to determine the constitutionality of a statute, or government action when that statute implicates a fundamental right or relates to a 56

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suspect classification under the equal protection clause To determine if a statute or government action passes the test, a court considers whether the government has a compelling interest in creating the law or government action, whether the statute is "narrowly tailored" to meet the government's objectives, and whether there are less restrictive means of accomplishing the same. Terrace: A level space raised above the surrounding area, usually flanked by a building. Traditional Public Forum: Places that by long tradition, or by government fiat, have been devoted to assembly and debate; the rights of the State to limit expressive activity are sharply circumscribed. Chapter Summary This dissertation uses the content analysis of judicial opinions to examine how federal judges interpret campus places in public forum court cases that involve constitutional conflicts over the exercise of First Amendment rights on higher education campuses in the United States. This research method is a legal case study of the content analysis of the Mason v. Wolf(2005) judicial opinion and similar selected federal cases; supplemented by a place-typing analysis of the Auraria campus, the multiple definitions of the word campus, and the Public Forum Doctrine. The }Jason v. Wolf(2005) case and Auraria campus study provided information for designing the Campus Place Public Forum Typology of public forum categories, 57

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which can be used to compare court cases and campuses throughout the United States. In summary Chapter 1 has included an introduction and background of the Mason v Wolf (2005) case ; as well as the research questions and definitions of terms and concepts used in this dissertation. The discussion of the problem statement and overview of the research problem purpose, justification and method provides insight into the research significance of this dissertation In this chapter, I outlined the contemporary confusion over the locations and levels of the United States Constitution s First Amendment speech protections on higher education campuses. The chapter also provided a detailed section on the organization of subsequent chapters in the dissertation, including an overview of the chapter 2 literature review, which examines literature on the multidimensional types of place and place-typing models. 58

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CHAPTER 2 REVIEW OF THE LITERATURE Introduction The literature reviewed for this dissertation provided insight into the primary research question, "How do judicial interpretations of campus place in constitutional law produce public fora on higher education campuses in the United States of America?" The central premise of this research was to recognize that place represents multidimensional social constructions and interpretations of physical locations. Franck and Schneekloth's (1994b) place-type model was the primary theoretical model I used to examine the multidimensional aspects of place. In this chapter, I have used the place-typing model as a theoretical framework to organize this literature review on the multiple dimensions of place, in order to examine how social and mental actions in society operate to produce place-types. Franck and Schneekloth (1994b) assert that it is important to recognize that the multiple dimensions interact simultaneously. They advocate that by examining the material, imaginal, and conceptual aspects of place individually one can identify the dominant institutions and interpretations that have transformed the place over time. I have expanded on Franck and Schneekloth's (1994b) "material, imaginal, and conceptual" triad of place aspects by incorporating additional theoretical models 59

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and terms that address the social construction of multidimensional place, in order to create a Multidimensional Place-Typing Framework. I used this Framework to examine how the multidimensional aspects of place are interpreted and applied as place-typing methods across different academic disciplines to produce public places This literature review was the first step in examining how place, as a socially constructed multidimensional theory, corresponds to place in the legally constructed Public Forum Doctrine. Theories on Place The theories and concepts of the multidimensional aspects of place and space emerged during the 1960s when academic disciplines and socio-spatial scholars began examining the social and political aspects of physical locations. Research and critical examination of how physical locations are shaped by political power and social tensions contributed to interdisciplinary research on examination of the multidimensional aspects ofphysical space (Nemeth, 2007). Henri Lefebvre (1976; 1991), Edward W. Soja (1996), John Agnew (1996; 1987), and other social science scholars established that the relationship between physical locations and political power was not being addressed when social problems were examined. These scholars, thus, challenged conventional concepts and descriptions of physical locations as non-political sites for developing research approaches to critically examine how power is created, maintained, and perpetuated in society through producing physical locations. Lefebvre asserted, "There is a 60

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politics of space because space is political" (p. 33 ). The declaration that the material world is not a non-political objective place generated new theories and approaches to critical analysis of social structures and human interactions when interpreting physical locations. Scholars who examine physical locations use different terms to identify and describe how multidimensional settings are produced as physical places. The following terms are examples of those used by scholars to identify multidimensional settings as types of: place (Franck & Schneekloth, 1994a; Hayden, 1995; Tuan, 1977), space (Carr, Francis, Rivlin, & Stone, 1992; Goodsell, 1988; Lefebvre, 1976, 1991), territories (Soja, 1971, 1996), landscapes (Groth & Bressi, 1997; Jackson, 1984; Schein, 1997), realms (Lofland, 1998), and geographies (Blomley, 1994; Elwood & Martin, 2000; McCann, 1999). I review the broad selection of terms and theories on the multidimensional place in the following section. Place and Space The most common and universal terms used to identify multidimensional physical locations are place and space. Conceptually, as interpretations of physical locations and social interactions, these words are not strictly distinguished in every academic discipline (Lou, 2009). The different terms and concepts of place and space are easily misunderstood if not identified and distinguished as multidimensional aspects of how social settings are located, produced, and maintained. Cultural geographer David Harvey emphasized that "place has to be one of the most multi-61

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layered and multi-purpose words in our language" (Harvey, 1993, p. 4). Assessing multiple theories on how place is produced and experienced was an important element in my research on legally interpreting place in the Public Forum Doctrine. Yi-Fu Tuan ( 1977), a human geographer, distinguishes space as more an abstract concept than place, proclaiming that an examination of place must include an understanding of the relationship to space, because these two concepts require each other for definition. He has described space as a medium that allows movement; while a pause in movement makes it possible for the location to transform into a place. Tuan (1977) declared that human experience exists in abstract undifferentiated space until specific locations become endowed with personal values as place. In Landscapes of Fear (1979), Tuan counsels that the concept of place is not always symbolic of positive attachments; place also represents landscapes of negative interactions, associations, and fears. Tuan's assessment ofthe landscape as a social environment of both positive and negative experiences expands the critical assessment of the duality of place as a social setting. Interpretation of physical locations must include a critical analysis ofhow a site was produced. In The Production of Space, French philosopher Henri Lefebvre ( 1991) theorized that a space is not an empty physical or geometric location, but rather is the reflection of social structures and relationships. He emphasized analyzing the embedded meanings and social relationships in a space, to provide insight and understanding on how a space is produced through social interactions. His spatial 62

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production model uses the term moments to describe the interaction of the spatia] triad: the representations of space, representational space, and spatial practice. He identified representations of space as material spaces conceived by the dominant institutions in society to reinforce social-class hierarchies. He described representational space as space directly lived through associations of images and symbols by users and inhabitants. The spatial practice dimension in Lefebvre's model corresponds to the performance, activities, and relationships of the members of the society that reproduce that space in everyday life. Lefebvre asserted that a space is not a thing but rather a set of relationships between things; because space implies, contains, and dissimulates social relationships. Lefebvre's ( 1991) spatial triad has been a theoretical framework for analyzing physical locations and social processes in many case studies on the production of space. His spatial theory model has been used prevalently in qualitative case studies to analyze the production oftypes of urban space. In the following sections, I discuss several of these case studies on the material, imaginal, and conceptual aspects of place. Edward Soja ( 1996), a political geographer, explained that space has been examined only as a material space or a space constructed in the imagination. He developed the concept of the trialectics of spatiality model, comprised of Firstspace, Secondspace, and Thirdspace. Soja (1996) defined Firstspace as the physical and material space measurable in concrete and measurable geographies. According to 63

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Soja, Firstspace resulted from analytical deciphering and "fixation on the material form ofthings in space" to create an absolute and objective depiction of the material world (p. 76). Seconds pace, in contrast, exists as the interpretive locale of individuals where activists visually or literately reposition an image in their subjective imaginations as a symbolic space. Soja expressed a concern that the geographical approach to spatiality thinking does not expand beyond the Firstspace of material space, which is mapped and analyzed, or the mental constructions and representations of Secondspace. Soja (1996) expanded on Lefebvre's spatial triad by applying spatial concepts in real settings as case studies on the production of space. He created a concept of trialectics, based on Lefebvre's spatial triad, in order to identify the existence of a Thirdspace, which is created from the tension between the material nature of Firstspace and the imagination of Secondspace. Thirdspace is produced as another category of space when material and imaginal spaces combine to form what Soja calls "thirding-as-Othering" (p. 81 ). The Thirds pace exists simultaneously in the material world and in imagination as a creation of place, which does not end the existence of the material and imaginal spaces but continues them in a new reality. John Agnew (1987) another political geographer, also examined place as a three-dimensional model, in order to describe political places created in society. He used the word aspects to contend that space becomes a meaningful site as a place when the following three requirements occur: (a) location as a coordinate on the 64

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earth's surface in relation to everywhere else; (b) locale as the material setting for social relations, the actual shape of a place within which people conduct their lives as individuals and engage in everyday activities; and (c) sense of place as the subjective emotional attachment people have to a place (p 5) Agnew's concepts are similar to Franck's ( 1994) model of interpreting placetype based on interpretations of the physical, emotional, and conceptual aspects that define and constitute a place. Agnew (1987) described "geography" as the study of the interaction among the physical environment, the spatial organization of powerful institutions, and the lived experiences and ideas of groups of people. He depicts place and space in the context of a broader process of political practices and movements: Space signifies a field of practice or area in which a group of organizations such as a state operates, held together in popular consciousness by a map-image and a narrative or story that represents it as a meaningful whole. Place represents the encounter of people with other people and things in space. It refers to how everyday life is inscribed in space and takes on meaning for specified groups of people and organizations. Interpreting physical locations includes a critical analysis of social structures and human interactions. Agnew (2002) arranged place and space in a vertical tension that puts space in a top-down position, defined by powerful actors imposing their control and stories on others"; with place in a bottom-up position "that represents the outlooks and actions of more typical folk" (p. 5). The relationship between place and space as a manifestation of spatial supremacy and social attachment to types of physical locations is addressed 65

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throughout this dissertation. The scholars who contributed to the literature on the multidimensional aspects of physical locations used a variety of words and concepts to examine social relationships that shape and sustain those physical locations. These scholars' critical examination of the multidimensional aspects of physical locations as social interpretations and interactions addressed an academic need to examine and expose the social meaning of production of physical locations. The assessment of different approaches describing how physical locations are socially produced and experienced was an important aspect of interpreting place for this dissertation. Multidimensional PlaceTyping Framework The concept of critical interpretations and analyses of how physical sites are socially constructed is a central theme in interpreting multidimensional aspects of physical locations.Franck and Schneekloth described the material, imaginal, and conceptual dimensions individually, yet asserted that these three dimensions all interact simultaneously. The necessity to examine place as a continual and simultaneous interaction of identifiable dimensions is affirmed by the scholars (Agnew, 2002; Soja, 1996; Lefebvre, 1991 ). I reviewed the different theories of place to create a Multidimensional Place-Typing Framework that I would use to identify the theories and scholarship that describes the different interpretations of how place is embedded in physical locations. I designed the Multidimensional Place-Typing Framework to link different constructs of place and space that are similar to Franck and Schneekloth's (1994b) 66

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material, imaginal, and conceptual aspects of place. I incorporated Agnew's (1987) meaningful place location, Lefebvre's spatial triad, and Soja's ( 1996) spatiality concepts into a theoretical model; combining these different terms and approaches to examine the multiple dimensions of physical locations (Table 2.1 ) The importance of this triad model is to create an analysis tool to examine how the multidimensional aspects of place are examined in a three-dimensional world, not only in a twodimensional environment. I organized three different place and space theoretical models into a chart to identify how the theories relate in terms and theories as material, mental, and categorical place. I used Franck and Schneekloth' s ( 1994b) material, imaginal, and conceptual aspects of place-types as the primary place-typing model for this dissertation, and have organized the literature into sections. Table 2.1 Multidimensional PlaceTyping Framework Multidimensional PlaceTyping Framework Theoristc=JI Physical !I Imagination Rational Franck &-If Material I! Imaginal I I Conceptual I Schneekloth PlaceTypes PlaceTypes !1 PlaceTypes I John Agnew Location I Sense of Locale I I I Representation of Representational I Henri Lefebvre Spatial Practice Space Space Edward Soja Firstspace Secondspace Thirdspace 67

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PlaceType Literature This literature review is organized based on the Multidimensional Place Typing Model. I compared different place theories to examine the social construction of multidimensional place because the different interpretations of place enlighten the understanding of the material, imaginal, and conceptual aspects of place-typing. This review also serves to enhance the Multidimensional Place-Typing Framework as a place-typing tool. In future chapters I will use the Framework to examine the institutions and interpretations that produced the flagpole area as a multidimensional place over time. In Chapter 4, I examine how the socially constructed concepts of place correspond to the development of Auraria into a campus; I examine the multiple definitions of the word campus as a multidimensional place in Chapter 5 and in Chapter 6, I conduct a case law review of the evolution of the Public Forum Doctrine as a legal precedent that corresponds to the three different aspects of place-typing. The examination of the place types in those chapters is a macro-analysis of the identity and contextual aspects of the flagpole area as a type of place. I also examine the content of the judicial interpretations of campus place to identify when, why, and where judges conduct a broader contextual assessment of the surrounding property and boundaries when conducting a public forum analysis of a physical place. 68

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Material PlaceType The first dimension in the Multidimensional PlaceTyping Framework is examining physical locations and human intervention in creating a "built environment." The literature on material aspects of place has examined the interpretation of human intervention in producing a material world. Lefebvre described space, conceived by planners and professionals, as the representation of space. Interpreting physical space must explore how spatial relationships and power are conceived within a geographical context (Farrar, 2000; Harris, 1991 ). Measuring, marking, and mapping places into territorial borders represent how the dominant contemporary society produces a hierarchy of space and social order in physical locations. Interpreting the social and spatial hierarchies in material place requires exploring who exercised power in the construction of the locations to examining how the place was produced overtime. Physical Character of Material Place Similarly, the critical interpretation of place must examine the relationships of the character of a physical setting within defined and measured spatial dimensions. Sarah Elwood and Deborah Martin (2000) expanded on the critique of the objective existence of place by examining the influence of location and scale of place. They qualitatively researched how places where subjects are interviewed are factors in research outcomes. They determined that "the interview site itself produces 'micro geographies' of spatial relations and meaning, where multiple scales of social 69

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relations intersect in the research interview (p. 649); and that the location and scale of a place is a factor in determining its geographical boundaries and the scope of interpretations of its place and place-types. Mini-geographies describe the scale of a material place that constitutes the "relationships of the researcher with the interview participant, the participant with the site, and the site within a broader socio-cultural context that affects both researcher and participant" (Elwood & Martin, 2000, p. 650) The scale and location of a place as a micro-geography represents relationships that exist within a physical location. Conversely, a larger scale and location are a macro-geography of the broader context of the place. Therefore, interpretation of a place can differ based on its location and the scale of the place as a microor macro-geography, defined by the social context in which the place-type is produced and reinforced by physical symbols and textual representations Material places are organized and mapped by their physical character and socially imposed boundaries that represent the social history imprinted on the material place. Examination of the architecture in a social setting provides an opportunity for critical inquiry and interpretation of material artifacts to develop objective knowledge of the historic context of the social systems that produced the material place (Morgenthaler, 1995). An important dimension in interpreting a place is examining where material places are maintained as social territories Soja ( 1971) described the creation of bounded territories as a behavioral phenomenon associated 70

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with the organization of space into spheres of influence or clearly demarcated territories which are made distinctive and considered at least partially exclusive by their occupants or definers (p 19) Examination of social territories formed by physical location provides a basis to interpret the meaning of material place. Karen Wells (2007) advised that conducting a study of material spaces tends to focus on who is in the space instead of the formation of the actual location She employed Lefebvre s space production triad to analyze the power structures in a city She advocated conducting an interpretive excavation of a material landscape in order to identify how power is represented in film maps and other communication mediums, as layers of the planning process that influence the culture and social behavior in cities The visual symbols used to identify the social structures in a physical setting are an important medium to identifying social hierarchies represented and maintained in a physical place. The research that critically has examined material space promote the theory that place contains social history. The main theme asserted is that interpreting a material place must recognize that the physical location is not a neutral element in the social development of that community. In "The Place of Landscape: A Conceptual Framework for Interpreting an American Scene," Richard Shein (1997) described material place as a cultural landscape that exists as a text of a social history. He conducted a case study of the Ashland Park suburb in Lexington, Kentucky, as an example of how to examine the material aspects of physical locations in the 71

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production of place. His article outlines different types of material and documents used to interpret and examine material places. These interpretive tools include Sandborn insurance maps, zoning regulation history, historic preservation, and neighborhood associations, all of which provide contextual information on physical location. Shein warned that reading the "landscape-as-text is unstable and requires constant reinterpretation" because the dominant society influences the cultural landscape to normalize social relations (1997, p. 676). Naming and representing place is a place-typing technique to operationalizes institutional expressions of social order through documents, institutional polices, and spatial practices that reinforce social hierarchies. Therefore, studying material place as an historic text of how social locations are created as cultural landscapes provides a means to examine the production of place in a broader social context as a macro-geography. Eugene McCann (1999) and Katherine Jones (2000; 2003), in separate research, drew upon the shooting death of an eighteen-year-old African-American by Lexington, Kentucky police in 1994, to analyze how urban planning had furthered racial segregation in that city. McCann (1999) researched Lexington's racially segregated landscape to generalize his findings on the production and representation ofracialized geographies in U.S. cities. Jones' (2000; 2003) research examined how Lexington's racial division of white and black geographies had been maintained through specific spatial ideologies in the planning process of Lexington neighborhoods. 72

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Both McCann (1999) and Jones (2000; 2003) applied Lefebvre's spatial triad in organizing their analyses of the production of urban public space, as case studies on the spatial practices of racial oppression in Lexington. McCann concluded that Lefebvre's theoretical model had been designed to address how racial segregation had been a factor in the perpetuation of oppression. McCann's assessment is an insightful analysis on how racial segregation is maintained in segregated social environments perpetuated by the material aspects of a "Jim Crow" culture. Both authors identified that Lexington had used their planning process to embed a segregated spatial identity that had influenced the social development of the city's material places. Examination of material aspects of place to perpetuate and maintain racially segregated societies is not the main focus of this dissertation; nevertheless, examining government's influence on the construction of social hierarchies is an important element in the judicial interpretation of public places. Examination of racial segregation as a constitutional relationship between public place and public expression is further discussed in the Civil Rights section on the development of the public forum as a legal precedent in Chapter 6. Summary of Material Place The study of material aspects of place provides an opportunity to examine the complexity of how physical locations are arranged to represent and influence imaginal and conceptual constructions of place. The prevalent theme shown in the literature on interpreting material place is a critical analysis ofhow material place is 73

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created to represent and maintain dominant social values. The power to manipulate material aspects of a place is a typing-method that includes naming and representing a place through written and visual media. Mapping and measuring physical locations is a place-making method that operationalizes place-typing to maintain a social order in material places. Imaginal Aspects of PlaceType The imaginal aspect of place is the second dimension in Franck and Schneekloth's place-type concept. They identified imaginal types as place-types that exist in our minds, hearts, and senses to represent and approximate physical locations that do not exist materially. The social process of creating an ideal place begins with images that identify values associated with a material place. Franck and Schneekloth ( 1994b) speculated that we seek to produce images from our imagination into the material world, with meanings and associations, so we can experience place both materially and imaginally. The imaginal aspects of place-type exist in the mind, unlike material aspects of place, which are absolute places measured and mapped within fixed boundaries that maintain a logical association with people and things. An imaginal place, a place of emotion, does not maintain a rational logic; thus, it is a place interpreted by how an individual or group relates or associates with a material place, and with an emotional logic that is difficult to map or measure. Lefebvre ( 1991) wrote that representational space does not need to obey rules of consentience or cohesiveness, because it is "redolent with imaginary and symbolic 74

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elements, have their source in history in the history of a people as well as in the history of each individual belonging to that people" (p. 41 ). In summary, imaginal places are mapped as social territories by imaginal boundaries of emotion and expenence. The imaginal aspect of place as a social process emerges when individuals interact as social groups within a physical location, based on the interpretation of the symbols and images of material places. Lefebvre's ( 1991) concept of representational space was re-titled by Soja (1996) as spaces of representation. Both Lefebvre (1991) and Soja's (1996) concepts ofplace, as the collective social process ofhow individuals interpret physical location through feelings and emotions, correspond to Agnew's (1987) sense of place that social groups imprint upon the material aspects of place. These scholars, who examined the multidimensional aspects of place, have maintained that imaginal places are produced by individual and collective experiences, emotions, and memories, associated with image, events, and symbols of material places. Placemaking: Creating the Imaginal Place Embedding mental imagery in material location is the process of placemaking, an environmental design process to modify material aspects of place into imaginal aspects of place-type. The examination of material aspects of place-type entails interpreting the degree to which a location and its features visually represent the concepts and aspirations of the location as an imaginal place. The construction of 75

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imaginary places in our minds--e.g., utopia frontier. marketplace of ideasproduces visual impressions that we, in turn, communicate through pictures and words in order to inspire a subsequent replication of this ideal material place (Franck & Schneekloth, 1994b p. 20). Research on the interpretation of imaginal places is an examination of forms and meanings that invoke a sense of place in the minds of individuals and groups, so that material elements are reproduced in the placemaking process. Literature on the imaginal aspects of place encompasses research on placemaking methods to ensure that material places are created as ideal place-types. The design team of Carr, Francis, Rivlin and Stone (1992) described "placemaking" as an environmental design process that is the most important factor in influencing public perception. They distinguished three guiding values for the design and creation of public places: (a) responsive, (b) democratic, and (c) meaningful. Further Lynda Schneekloth and Robert Shibley (1995) described "placemaking" as a social process to transform space into place by generating spatial designs meaningful in people's daily lives. The establishment of ideal material types is dictated by the influence of how a location is interpreted as an archetype of ideal places. The perception of placemaking stems from an imaginal bridge that links material aspects of place to conceptual aspects of place. Interpretation of placemaking reveals how physical interventions in the material places were designed to promote particular experiences, activities, and meanings by creating utopias and other 76

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idealized place-types (Franck & Schneekloth 1994b). The process ofplacemaking includes layering the material world with imaginal concepts of names imagining experiences inventing and modifying and representing. Franck and Schneekloth ( 1994b) explained that the legal codification or imposed authority over a material place in turn limits an imaginal conception to a singular material place type. They cited as example that single-family zoning "enforces a single idealization of the American house and the American family" (p 21) ; that the imaginal aspect of naming a location is a natural placemaking process that creates place within the material world. The concept of placemaking is an intentional activity to create, name and promote significant locations of social interactions in material places. Advocates who promote placemaking expound on the process as a democratic activity that furthers inclusion of users in the process of creating place. A critical assessment in the formal placemaking process is who ultimately decides the dominant interpretation of place that will prevail in the final version of the production of the material place. Placemaking, viewed as a top-down process creates political space when not embraced as a social activity that includes users and individuals who inhabit the physical location. The placemaking process is an activity that also is a social process that produces imaginal places as social landscapes that are less formal but nevertheless are impactful in creating imaginal landscapes 77

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Imaginal Landc;capes The process of inventing place as a place-making process is a formal production of planning a material place and creating an idealized place that differs from the creation of types of imaginal landscapes, which is discussed below. Landscape was described by Paul E. Groth and Todd Bressi ( 1997) as the interaction of social groups and their environments, particularly the space to which a group belongs and from which its members establish identity, articulate social relations, and derive cultural meaning. A similar concept of social and spatial interaction is used in the literature to define several types of social interactions that produce social settings and promote images of physical places. Raymond Williams (1973) critiqued how place imagery is used in literature to illuminate the relationship between written text and cultural development and identity (Hall, 2008). Williams' (1973) "The Country and the City" is a critical literature review of how place is described and promoted in English literature. He wrote that the words country and city are powerful ones used to promote biased and one-dimensional images of human communities in English literature. Williams commented that country describes both a nation and a part of land, so that it can be a whole society or its rural area, in contrast to the great achievement of "the city" as a distinctive form of civilization (p. 1 ). Use of these words combines imaginal aspects and material aspects of place to promote social concepts of the dominate society. The use of words as a language to describe physical 78

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settings is a way to identify formal and informal distinctions in the interpretations of place John Brinckerhoff Jackson (1984) specifically identified vernacular landscapes as formations of space where social groups establish identity, articulate social relations and derive cultural meaning as their representational space. Jackson (1984) wrote in Dis c overing the V e rnacular Landscape that a "landscape like a language is the field of perpetual conflict and compromise between what is established by authority and what the vernacular insists upon preferring" (p. 148) He identified how the use of words landscape and country is a textual way to distinguish between the vernacular and aristocratic or political concepts of space. The former is designed by long-range and large-scale plans established by political processes to impose and preserve a unity and order on the land in ownership. The vernacular landscape in contrast is a temporary state established by cultural mores and traditions that are subject to rapid change because a vernacular landscape is perpetually in transition and held together by personal relationships Both Jackson and Williams observed that words used to describe physical settings are a powerful medium to promote images of fictionalized places as real settings. An imaginal landscape is promoted in media to convey mental and visual representations of an idealized physical and social setting. The inhabitants of the imaginal or representational space as an internal image also develop personal 79

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relationships within a group setting to reflect that imaginal place, or vernacular landscape, and maintain integrity with their social setting and social identity. Imaginal Place and Social Identity Research on how social identity is associated with place revealed that an important element in the interpretation of place is the self-identity that individuals attach to a place based upon the creation of imaginal places. The description of a place as a social process of how individuals interpret a physical location, through feelings and emotions, was addressed by Dolores Hayden in The Power of Place ( 1995). She described place as the intersection of significant social interactions between physical spatial designs and people's daily lives. An urban theorist, she used case studies to illustrate that one can map how place develops over time by tracing incremental modifications of space, like a city or building plan. She described the power of place as a transforming element that reflects the social and spatial struggles of everyday people and produces urban landscapes. She recognized that both the words and concept of a place describe a social status in which the people know their place within the social setting. The critical research approach in Hayden's work illuminated the struggles of people of color in their efforts to create their own place of social identity. Pamela Wridt's (2004) case study on playgrounds used Lefebvre's spatial theory as a theoretical foundation for research on the evolution of socially constructed geographies and meanings of childhood. Her research on social geographies 80

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examined the imaginal aspects of playground as a childhood memory and experiences over time in creating childhood geographies. She introduced a theoretical model of multidimensional aspects of childhood place comprised of (a) children s lived spaces (b) representations of childhood and (c) space of childhood. In her case study on the qualitative aspects of how individual perceptions and experiences in a physical location develop spatial identity Wridt adapted her childhood model from the concepts of Lefebvre and Soja in order to describe emotional and social maturity that produce childhood geography. Research on the historic changes of an individual's imaginal concepts of playgrounds is a place-typing analysis for exploring how a sense of place is linked to identity. Imaginal aspects of place are personal and cultural settings that influence the images of material places that represent and invent the social identities of the users and inhibitors that occupy those physical locations. The relationship between the imagination or conception of a social setting and the physical place was described by Sarah Dooling (2008) in her research on homelessness in Seattle. She employed Lefebvre s spatial triad as a framework for her qualitative ethnographic analysis of homeless individuals Her research assessed the broader disagreement over the interpretations of the concepts of housing and physical place among politicians government officials and social activists embedded in Seattle's spatial politics. An example of the contrasting interpretations over homelessness is the values and meanings that are embedded in the dominant concept of what constitutes a home. The 81

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pejorative connotation of not living in an institutionally defined home imposes a negative spatial identify to describe an individual as homeless. Yet through interviews with individuals who were living in a state of homelessness, Dooling explored that their interpretations of their situations and ability to access space were fundamental to assigning a personal meaning to a space that constituted a home, based on (a) safety, (b) stability, (c) senses of self-worth and self-sufficiency, and (d) sense ofbelonging. Dooling's (2008) case study on the homeless relates to Tuan's identification that individuals and institutions may both interpret landscapes as being negative social and spatial arrangements based on different experiences within social and political hierarchies. The idea that identities of individuals are produced in place relates to the concept of how imaginal public space has an imaginal identity that applies to place. Jia Lou's (2009) research on the linguistic construction ofWashington D.C.'s Chinatown is an example of research that blended the material aspects of place with the imaginal construction of an ethnic place. Lou (2009) used Lefebvre's spatial theories to create a model of how the architecture and bilingual Chinese/English street signs had constructed a linguistic landscape. The use of language to describe and serve as a way-finder is an important element in creating an imaginal landscape. Social identities are established by individuals and groups present in social settings. A campus is a place for students, a jail for prisoners, a hospital for patients, a military base for soldiers, a factory for workers. The material and imaginal aspects of 82

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a physical location promote a unity between an individual's perception of personal place and the spatial identity. The interpretation of place also can examine how a social identity is produced by a particular place as a liberating, or oppressive, identity within a social setting. The concept of public as a social identity has a significant relationship between the material and imaginal productions of place and place-types. The Imaginal Public and Public Space The imaginal aspect of space has many names that use the word public to represent democratic types of places Public is also used to describe types of places that are visible and socially oriented for members of the public. The imaginal aspects of a place for public interaction have multiple conceptual terms and themes. Furthermore, public describes the imaginal social status that emerged in the 1950s and 1960s during a period of social movements that promoted spatial rights to end segregation, social oppression, and discrimination. The concepts of public realm, public space, and public sphere were terms used to advocate increased social interaction against the domination of private property and social control. Public was used as an adjective to describe concepts of imaginal aspects of place, including the type of public space described by Setha Low (2000). Low theorized that public space has a significant relationship to the development of cultural change, by promoting interaction among people who assist in the establishment of social identity. In contrast, Lynn Lofland (1998) used the term realms to describe social networks that exist within physical spaces but are not fixed to physical boundaries; 83

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the realms are formed as culturally memorialized realms based on social interactions among strangers. She described the realms as public, private, and parochial She used a collection of qualitative research conclusions and visual images to support her contention that the public realm is a city's quintessential social territory, "a distinct type of urban public settlement in which individuals in co-presence tend to be personally unknown (strangers) or only categorically known to one another in terms of occupation or other non-personal identity categories" (p.1 0). A parochial realm is characterized by commonality among interpersonal networks within communities; and the private realm is characterized by ties of intimacy among primary groups within personal networks (Lofland, 1998, p. 1 0). She wrote that the idea of public as access for all members of society is in juxtaposition to the concept of private space ownership which conveys the power to deny access to all people. Advocates for public space have noted that it must exist in a democracy as a physical site that is open to all people to engage in debate and where no person is sovereign (Arendt, 1998; Lofland, 1998; Scruton, 1987). Public space scholars have declared that physical locations are important gathering points for individuals to participate in the development of society, by encountering and communicating with strangers and engaging in activities where they are part of a broader social experience. Advocates who promote the significance of public space have asserted that contemporary urban landscapes are unable to generate social development because they have lost their public nature. 84

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Critics of contemporary public spaces have claimed that they are created for commercial interests and do not promote civic engagement in legitimate public spaces (Loukaitou-Sideris & Banerjee, 1998). They argue that the designs discourage social interaction in public space because of a loss of understanding about the need for social encounter (Glazer & Lilla, 1987); that the intent to make public spaces into serene places inhibits psychological maturity by controlling the social interactions (Sennett, 1970). On the other hand, advocates who promote the significance of public space have attested that contemporary urban landscapes are unable to generate social development because they have lost their public nature. Summary of Imaginal Aspects of Place Imaginal aspects of place are socially imprinted concepts and images of normative values of how place operates in a community and engages its social development. The imaginal aspects link the material aspects to the conceptual aspects by promoting images of an ideal world. In addition imaginal words like placemaking, childhood, homeless, and public describe the interaction of social experiences that are shared, or suffered, based on physical location. The sense of belonging is an individual reaction to interacting with a social group that collectively shares an identity by shared experiences of a sense of place to a material location. The characteristics of imaginal places are conceptualized to classify corresponding material places by physical character, as well as imaginal expectations and experiences that are listed in typologies. 85

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Conceptual Aspects of Plac e Type The third dimension in the place triad is the conceptual aspect of place-typing to create categories of place-types. Franck and Schneekloth (1994b) observed professionals and academics in many fields have systematically arranged place-types into typologies as formal constructs to describe, explain, proscribe, and regulate different types of material and imaginal places. Franck and Schneekloth emphasized that conceptual place-typing is a rational activity to identify and categorize the relationships between types of places within a class, places in other classes, and criteria for the classifications. The value of identifying types of places that exist in the world, and the process of typing the places into categories, is an important method for interpreting the multidimensional aspects of place Scholars who study multiple dimensions of place have sought to create an objective classification of place that is recognized as a universal category that specifically defines location as a multidimensional physical location. One way to examine the conceptual analysis categories of place is how people interact in creating a place over time. Franck and Schneekloth ( 1994b) wrote that the "landscape of material types generates conceptual types and conversely the conceptual types generates the material world and our spatial practices in it" (1994b, p. 23). The spatial practice is also a way new categories of place are constituted based on the interpretation of both material and imaginal places. 86

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Lefebvre ( 1991) explained spatial practice as examination of the performance, activities, and relationships of members of the society, which reproduce space in everyday life. Soja (1996) described this space as a new reality created when materialfirstspace and the imaginal secondspace combine to form a thirdspace, which exists based on the interactions of people in space that exists simultaneously in both the material world and the imagination. Agnew (1987) described the place-type where people interact as a place category as the locale where people conduct their lives as individuals and engage in everyday activities. These scholars all have described conceptual place-types as being created and constituted by the combination of social activates and experiences. The conceptual aspects of place are categories created to link places that are formed by how people use material space in their everyday lives. The different descriptions of conceptual place-types are all defined by how people interact in a space. Franck (1994), in a separate analysis on place, wrote that we create a mental ordering of place into types and conceptual categories as we are experiencing the world. She identified the place attributes offrom, use, and meaning as three kinds of place characteristics that link together as place-type. She instructed that the strength of the linkage among the form, use, and meetings attributes of place types is based on the place and its particular function, which generates the specific interpretation of the place. She provided the following example to describe the distinctions in the interpretations of types based on the context of the location: 87

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When the tower is part of the church or a prison, the form, use, and meaning attributes of the tower, now embedded in a larger and more functionally specific type, become more delimited and more specific. When the tower is a minaret next to a mosque, or a spire of a medieval cathedral, or a lighthouse on the coast, the attributes of form, meaning, and use become more specific. The context of the type in the material world, which often consists of larger and more exclusive place-types, helped define its meaning and uses. This speaks again to the connectedness of types; they are composed of attributes connected to each other and to their context. (Franck, 1994, p. 348) Franck (1994) identified that the tower description is an example that the specificity or generality of a name, visual image, or other representation of a place determines the range of interpretation of the place and its attributes. The more specific the naming or image of a place, the more the place is delimited, or interpreted, than any other type of place. The place-type attributes of form, use, and meaning are specific ways to conceptualize specific place-types within the broader context of a general physical location. Franck's (1994) form, use, and meaning place-typing attributes are conceptual components that augment Franck and Schneekloth's (1994b) place aspects. Therefore, I continue this literature review, in researching the interpretation of place, by examining how place is categorized by spatial practices that define the form, use, and meaning of different place-types. Places of Authority: Civic Space A central place-typing category, for this research, is the interpretation of architecture and material places as a symbolic representation of power and authority. Harold Lasswell (1979) examined the complex interplay between material aspects of 88

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place in the form of buildings as a manifestation of symbolic political power. He examined the design and form of architecture, for assessing how material space is arranged to promote political power upon the public. He described how the symbolism of architecture is communicated through the shapes, sizes, and locations of buildings. A key component in Lasswell's research was his assessment of the degree to which political power is shared and corresponds to the design and shape of architecture and material elements. He observed that political institutions, which support a narrow sharing of power, favor enclosed architectural forms, compared to institutions that exercise a wider sharing of power, thereby favoring more permeation and open spaces with fewer material enclosures. Military enclosures and prisons are Lasswell's examples of enclosed, top-down hierarchies of singular power that employ an architectural design of domination and defense. Lasswell's approach of analyzing the relationship of architecture and political authority influenced Charles Goodsell's interpretation of architectural design for assessing the symbolic manifestation of power in city council chambers ( 1988), state capitols (200 1 ) and government buildings ( 1997). Goodsell, a political scientist interpreted the "expressive statements of civic space" as a qualitative descriptive analysis of architectural form to develop categories of civic architecture in the United States (1988, p 12). Unlike other research on physical spaces such as William Whyte's (1980) on public space, Goodsell did not focus his analysis on social 89

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responses of individuals or groups to physical design. Instead, he analyzed how the manifestation of authority is embedded in the physical design of civic space. He asserted that architectural and space analysis provides a link to identify power relationships among kinds of places, people, and activities. Lasswell and Goodsell's investigations both presented perspectives on the complex relationship between architecture and political ideology. They both used photographs of material places to illustrate how the form of a public building functions to influence political process and human interaction. They both found that the forms of buildings reflect political power, which is interpreted by the public. The architecture that Goodsell (1988) analyzed was a material aspect of place that is civic space. In The Social Meaning of Civic Space, he defined civic space as "relatively enclosed physical volume that is controlled by the state and in which ceremonies are performed before outsiders" (p. 13). Goodsell's study provided a descriptive model to distinguish civic space as a unique type of public property. His research design and results provided a model by which to compare the manifestation of authority in the design of civic space, with other types of spaces in the conceptual aspects of place (Figure 2.1 ). His analysis of the physical design of city council chambers distinguished civic space as a distinct type of interior public space, possessing four characteristics: (a) state-owned, (b) publicly accessible, (c) ceremonial, and (d) enclosed (1988, p. 12) 90

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Goodsell's research design and results provided a system to analyze a political entity through the physical design of a public space under their control. His civic space diagram is a visual means to illustrate the difference between civic and other types of spaces, based on the conceptual aspects of a place. His research provides a perspective on relationships between architecture and political ideology; and expanded the understanding of spatial authority on one type of public space design, based on the enclosed and ceremonial space. This literature review includes placetypes that are identified on the grid as "open air" and "utilitarian while other types of public spaces are listed in Goodsell's civic space model. j;oJ = rJ::J rJ::J j;oJ u u < j;oJ = rJ::J rJ::J j;oJ u u < PRIVATE STATE governmental private homes, offices, offices, vehicles conference rooms UTILITARIAN CEREMONIAL i civic plazas, I IX public parks military drill t z and streets I "'" fields I Cl. 0 Commercial I showrooms, I reception areas corridors, Civic Q restrooms in "'" Space "' 0 governmental ...l u buildings z "'" Figure 2.1 Civic Space Grid (Goodsell, 1988, p. 13) 91

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Goodsell distinguished plazas from parks, by classifying plazas as ceremonial spaces and parks as utilitarian spaces. He did not provide a contrasting discussion of other forms of public space when identifying these distinctions. I believe the distinction involves the degree of control maintained over an area by the political authority. Ceremonial spaces on public property are locations designed for municipal affairs; designed for civic business, they reflect a municipality's relationship with its constituents, and influence the development of social relationships. Since emergence of the legal doctrine ofthe Public Forum, political authorities have had their absolute control restricted over these types of outdoor spaces. Unlike enclosed ceremonial spaces, contemporary outdoor spaces may not provide political authorities with the same array of physical design features to influence or control social interaction in the spaces. Compared to ceremonial spaces, utilitarian spaces, parks and sidewalks, are less controlled, or restricted, by the political authority for a specific use by the public. Urban Open PlaceTypes Terms used to describe specific types of places include plazas, public square, civic centers, sidewalk malls and lawns as urban forms of public space, and places for the public. Types of urban design features researched as conceptual place-types and urban public spaces include sidewalks, roads, and parks. City sidewalks are conceptualized features of place-types that assist individuals in negotiating and navigating urban places. Jane Jacobs' ( 1961) critique of 92

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urban design structures advocated that accessible social gathering places within urban neighborhoods are crucial physical features for the social development of a city. She identified sidewalks as urban place-types that are the most common and dominant physical feature that links urban places together in a city. Jacobs promoted linking neighborhoods through a continuous network of sidewalks, parks, squares, and public buildings, to reinforce the social fabric of city life. Her assessment of urban place included examining the physical, social, and economical features of the urban environment, to determine how the parts relate to each other to form the whole city; and that the urban configurations create networks of spatial relationships between people and place, which influences social activities. For this dissertation, an examination of the relationships between objects and people is an important place-typing method for mapping physical locations by the social meanings associated with place-type design. The place-design guidebook People Places ( 1998) by Cooper Marcus and Carolyn Francis uses imaginal concepts to identify how material places can serve as the heart of social interaction in an urban open space. The authors conceptualized types of urban open space and prescribed a course of action needed to construct meaningful places, through designs, to attract people to certain locations. They proposed that a people place is one that is (a) accessible to a wide variety of populations, (b) encourages a variety and diversity ofuses by multiple groups, and (c) promotes a sense of meaning, belonging, and access attachment. 93

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Marcus and Francis's (1998) design guidebook also conceptualizes seven types of urban open space: (a) neighborhood parks, (b) mini-parks, (c) urban plazas (d) campus outdoor space, (e) eldercare housing outdoor space (f) childcare outdoor space, and (g) hospital outdoor space. The authors identified that these locations had been assessed based on the ages of the users (e.g., elderly children), the site's purpose (e.g., campus, hospital), and its zoning (e.g., neighborhoods, urban plazas). Design of physical places to promote individual spatial rights for engaging in public interactions is a public placetyping method that promotes social interaction The urban plaza typology classified the variety of plaza types by form and use, resulting in six typological categories of plaza types: (a) street plaza, (b) corporate foyer, (c) urban oasis (d) transit foyer (e) street malls, and (f) the grand public place. Marcus and Francis (1998) created a typology of downtown San Francisco's plazas to understand the varieties of urban plazas by categorizing them and prescribing specific design guidelines by plaza type. They advocated design features that promote an atmosphere of individual authority, to use a space for a variety of activities and to engage in acts of individual expression. Their design categories stipulated that the material aspects of a place have a physical form of open walkways and places that convey openness and ownership. The designers specified that spatial rights are communicated when places have few physical barriers of use that mirrors a freedom for individuals to access and remain in the location. The designers advocate research 94

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on the urban physical locations to critique how the design features of place-types as part of the overall whole of urban form influence social interactions. Bonus Space Research on the conceptualization of multidimensional types of space is a model on theoretical foundations for examining physical places as conceptual aspects of place-types. Jeremy Nemeth (2007) created a conceptualized type of physical location, to identify spatial control in policies, management, and the physical design ofbonus spaces in New York City. The bonus spaces in his research are the same plaza types as identified by Marcus and Francis (1998) as corporate foyer plaza typology. Nemeth used Lefebvre's spatial concept to research how bonus spaces are produced through government regulation by public officials and the development of community. In his research on New York City's bonus space, Nemeth identified four specific index features of control: (a) Laws/Rules (ownership), (b) Surveillance/ Policing (meaning) as hard control over the bonus space, (c) Design/Image (form), and (d) Access/Territoriality (use) as soft control over the bonus areas. The plazas are another urban physical feature conceptualized as a place-type. The Conceptual Public Place: Public Space A consistent criticism in "public space" literature is the decline of public space as a social gathering point. Critics of modem urban development complain that the design of contemporary public space focuses on creating private homogenous environments, which conflict with the notions of traditional public spaces (Sorkin, 95

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1992). Mike Davis (1992) wrote that the design and development of contemporary public space in the modern city has become such that privatized enclaves restrict public interactions through policy and planning. He added that physical locations are being designed to exclude and marginalize the disenfranchised, as private interests dominate and dictate management of this, heretofore, public space. Also that this, in tum, has restricted public space from locations of robust debates to tranquil sanitized places, in order to ease conflicts and maintain social order, while discouraging vigorous social interactions. Finally, that loss of public interaction in physical locations has resulted in a decline of social connection. The failure of material places to generate positive social interaction is addressed by scholars, who critique how location designs are perceived, as socially democratic public places that promote the rights of the individual. These scholars offer prescriptive guidelines on the design of public space to promote spatial rights. Kevin Lynch (1972) proposed that material places become socially significant as individuals imprint memories upon a physical location, based on their positive or negative experiences in that location. His five dimensions of spatial rights prescribe an ideal public-space design to provide individuals with: (a) physical, visual, and symbolic access; (b) freedom of action; (c) claim over the space where the occupant feels a proprietary interest over the space; (d) changes over time; and (e) ownership (p. 137). Lynch's inventory of design features is a basic element in social settings that equate spatial rights with the legal concepts of private property ownership. 96

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The power possessed by public-property ownership is a shared bundle of rights associated with the freedom to access public property and participate in social life. In the design guidebook Public Space (1992), authors Steven Carr, Mark Francis, Leanne Rivlin, and Andrew Stone claim that the overwhelming design feature for public space is one that conveys and sustains spatial rights for the public. They reconstructed Lynch's five dimensions of spatial rights into five features of physical space, to make it attractive as public space: (a) access, (b) freedom of action, (c) claim, (d) ownership and disposition, and (e) change (pp. 186-187). Their translation of spatial rights into physical design emphasizes the importance of physical designs that honor and promote democracy as a public experience. The perceived freedom to access public property is only one aspect of spatial rights that promotes the public features of a location. The liberty to make one's presence and expression visible in a public square is another aspect of spatial rights that allows individuals to engage in social expression in popular as well as public places. Spatial scholars Marcel Henaff and Tracy Strong (200 1) identified public space as having three criteria: (a) the space must be a human artifact created by social encounters, (b) the location must be open and accessible to all, and (c) it must contain a theatrical element in which people are visible to each other. The idea of public space as a place where an individual enters into the space as an actor to produce a social-theater performance that highlights social issues in public theater, is an important notion introduced into the Public Forum Doctrine. Public places provide to 97

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individuals, who do not own private property spatial rights, a place where they can engage in self-expression and be visible in a public location. Public space is described as a location where individuals may expect to assemble to present social concerns to other individuals, in places frequented by the public as popular places. Public spaces are physical locations that provide places where people are visible to each other, to vocalize social issues and promote democracy in social interactions. The conceptualization of the public space as the center of community activity serves the public interest by providing places that link all individuals. The Project for Public Space, Inc. (PPS), an advocacy group for public space, proclaimed that four design features are critical in the success or failure of this type of space : (a) access and linkages, (b) purpose and activities, (c) comfort and image, and (d) sociability. PPS (2000) design attributes promote material aspects of place to create imaginal feelings of openness to space This conceptual approach of creating categories for emotions is an important aspect of how "place" develops over time. The conceptual image is that public space brings people together, by relating a place to other images and ideals. Public space scholars all have similar themes in the form, use, and meaning of public space. Regarding the public space design, they all have proscribed that public space is (a) publically owned land (b) designed in an open form to provide a wide degree of access; that it (c) encourages individual freedom to engage in a visible and 98

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wide variety of uses and activities, and (d) promotes a sense of attachment, purpose, belonging, and social bonding as a place that is a human artifact. However, the conceptualization of place has failed to examine individuals' decisions to use physical locations based on their knowledge or perception of democracy and their related legal rights as reflected in symbolic meanings embedded in the physical environment. This perception is influenced by changing social interactions, which is reinforced or extinguished by the way urban space is designed and managed as public location. Legal Geography The development of physical locations as legal places is linked to the judicial interpretation of how places are conceptualized into different place-types. Don Mitchell's Right to the City (2003) is a detailed chronicle of examples and case studies on how public space has been overly regulated by rules and law. Staeheli and Mitchell (2008) examined the importance and values of social settings by reviewing court cases that had involved legal controversies over the use of public space. These authors synthesized five case studies, in order to identify relationships among physical space, the rights of people to use space, and the exercise of power over space. They wrote a brief description of how public forum case law creates legal categories of space (2008, pp. 4-5), recognizing how the development of the Public Forum Doctrine created "a broad legal context for regulating peoples' political activities on public property" (2008, p 6). 99

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Nicholas Blomley (1998; 2003; 1990) also emphasized that there is a connection between place and the development of law. He critically examined the law, challenging the notion that it is objective. My own research expanded on a legal review of public forum case law, by analyzing the production of space through legal interpretation of the multiple dimensions of campus space. Similarly, Blomley's legal geography identified how space and the law are interconnected through court interpretations of physical property. Further, Blomley asserted that legal actors produce legal geographies through court decisions, legislations, and regulations. That the law, as a power to impose and maintain the status quo, is similar to assertions by Lefebvre and others that the dominant social order applies the law to promote social oppression and to serve as a tool of power to remain in control. Conceptual Place-Type Summary The conceptual aspects oftypes of places/spaces as civic, bonus, urban, and public are conceptual categories that describe the imaginal aspects of material locations. Goodsell's Civic Space Model outlines how types are related to each other by different place attributes, based on ownership and design. The Model identifies utilitarian space as parks, and spaces between buildings. The distinction between ceremonial and utilitarian spaces in outdoor public spaces is based on physical design and access. The common theme among advocates for public space is the need to have physical locations designed to communicate to the public that the locations are 100

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accessible for general use. The design features of public space are also symbolic ideals that convey a sense of social rights, which allow unrestricted access and use and interact on public property to members of the public. The place-types categories of conceptual places, described as designed locations, are: Ownership -rights associated with the location Form-openness to access a visible location Use -freedom to engage in activities and use the location based on one's own desires Meaning-the programmed purpose, rules, laws applied to the location. The design of physical places for promoting individual spatial rights, to engage in public interactions, is similar to the aspects of place-typing. The design categories stipulate that the material aspects of place have a physical form of open walkways and plazas that convey openness and ownership, to promote the feeling that an individual can control or appropriate the space for personal expression. These scholars specified that spatial rights are communicated when places have few physical barriers to access and use, mirroring freedom of access to enter and remain in the location. Locations should promote an atmosphere of individual authority to use a space for a variety of activities and to engage in acts of individual expression. Chapter Summary Chapter 2 comprised a review of literature on the multidimensional aspects of place-types. This chapter identified studies consulted for their theories and research 101

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on place and place-typing including such topics as Multidimensional Aspects of Physical Locations, Interpretations of Place and Space, and The Material Imaginal, and Conceptual Aspects of PlaceType I combined organizational structures and constructed perceptions with Franck and Schneekloth s ( l994b) material imaginal and conceptual aspects of place-type model. Franck and Schneekloth's place types Agnew s place location Lefebvre's spatial triad and Soja's spatiality all theorize that material settings are constituted as imaginal social settings and conceptual categories based on physical design and use. This literature review was designed to identify the different ways material place is encountered imaginal place experienced and conceptual place engaged as categories of place in spatial practice to produce real place-types. In Chapter 3, I present my research methods and outline the content analysis of legal research for the place-typing model which is combined in subsequent chapters with the Multidimensional Place-Typing Framework. This qualitative study used both methods to produce a descriptive analysis of campus places, interpreted as public fora as both socially and legally constructed places in the United States. 102

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CHAPTER 3 RESEARCH METHODS Introduction This chapter elaborates on the legal and qualitative research methods I used to analyze the content of judicial opinions involving the interpretation of campus places as public fora. This research was limited to the examination of federal court cases involving speech conflicts on higher education campuses in the United States The purpose of this dissertation was to broaden the understanding of how the character of a campus place is interpreted as multidimensional place in public forum analysis; subsequently, to create a typology of campus places that have been interpreted judicially as public forum categories. Ultimately I am conducting this research to examine how social constructions of multidimensional places are linked to legal interpretations of the places as public forum categories. This research focuses on Mason v. Wolf(2005) as a case study on the Auraria campus and of the constitutional connect between campus place-types and freedom of expression that are protected by the First Amendment of the United States Constitution. I assert that Judge Figa's examination of the flagpole area's character in his public forum analysis is a place-typing assessment of multidimensional place. 103

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In this research, I combined legal and qualitative research methods to examine how public fora are produced through the judicial interpretations of campus placetypes. This chapter presents my rationale for combined a legal research method with a place-typing theoretical model to address the following primary and secondary research questions: How do judicial interpretations of campus place in constitutional law produce public fora on public higher education campuses in the United States of America? o In the Mason v. Wolf(2005) case, how did Judge Figa's interpretation of the flagpole area as a type of place produce a public forum? o How do judicial interpretations of campus places in other campus court cases produce public fora across the different federal court circuits? In addition, Chapter 3 examines: (a) United States Court System, (b) content analysis research method, (c) court case selection, (d) classifying court cases, (e) court case analysis, (f) place-type assessment, and (g) benefits of the research. Rationale for Legal Research The legal research method used for this dissertation was Hall's and Wright's (2008) content analysis ofjudicial opinions. I chose this content analysis method to examine the language and concepts used in judicial opinions, in order to evaluate how judges interpret campus place-types when applying public forum analysis in constitutional law. The content analysis process provides a deeper scrutiny of public forum case law than the conventional case law review method. 104

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Conventional case law research provides a means to review court case outcomes in a string of similar court cases however this method is does not provide a process to interpret the application of legal principles (Hall & Wright, 2008). The content analysis method investigates judges' written opinions in court cases to compare patterns of judicial or factual interpretation oflegal issues. For this research I identified patterns in the interpretation of campus place in public forum case law and described specific factors important to case outcomes in the cases on higher education campuses. I also examined the legal concept of the Public Forum Doctrine which is detailed in Chapter 6 in order to identify its origins background, and evolution as constitutional case law, based on the judicial interpretation of types of public property as public fora. In addition my comparison of Ma s on v. Woif(2005) in Chapter 7, to selected federal cases in Chapter 8, is a case law examination of how the Public Forum Doctrine is applied across federal circuits in the United States Source of Legal Data: Federal Court Case Law Following is a brief overview of how and where case law as judicial decisions, originated as court cases and case appeals in response to complaints filed in court, alleging violations of constitutional rights. The ability to determine the sources of law on a legal issue requires understanding how case law develops in each federal circuit and throughout the United States. The U .S. Constitution and the United States legal system both grant courts the authority to serve as the final arbiter of conflicts and disputes under law. 105

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The judicial inquiry into a legal conflict is a method of authenticating and transmitting legal truths for resolving legal conflicts between two parties (Foucault & Williams, 1996). Judges convey this authority through the language of their judicial opinions, which are contained within the judicial decisions (Charrow, Erhardt, & Charrow, 2001). The judges produce case law through their judicial opinions that outline how the legal conflict was resolved in the court's decision. In tum, the court's decision constitutes "precedent," which provides legal authority in subsequent and similar cases in the same court system (Kunz, Schmedemann, Barteson, Downs, & Erlinder, 1992). Case law is a source of law created by the collection of reported cases that form all or part of the body of a law within a given jurisdiction (Black's Law Dictionary, 2009). The primary source of case law is appellate courts, not trial courts, because juries decide the facts and judges rule on the legal consequences. However, when significant issues of law are involved, federal trial court judges may issue published decisions containing their judicial opinions and explaining the court's decisions. These decisions are published in legal reporters, called the Federal Supplement; however, all district court case decisions are not published (Elias, 1986). Federal appellate court decisions are published in the Federal Reporter, another type of legal reporter. Federal district court and appellate court judges' opinions are the judicial analyses of legally relevant facts and applications of law to those facts. Reviewing judicial decisions that arise from this type of litigation 106

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provides legal certainty for guidance in addressing and pre v enting future disputes (Cohen 1985). The judicial opinions and deci s ions become the statement of law for the jurisdiction or geographic area covered by the court's ruling in the United States Court System. United States Court S y stem The U.S Court system operates on two levels federal and state courts. Federal trial courts are called United States District Courts (Figure 3.1). The federal courts address cases that involve complaints alleging violations of the United States constitutional. Cont t s aad Local Ta'i..JCoat u U S S11p1om Co11r1 U S F.d..-..J Circnit Conl't of Appllls(Subjct ?.latter inchtdint applll from U S Dillhict Conrts) U S. Claims Court U S Com I of :Wfft'llftftOilAl Td ThF.d..-..J S ySI"" ..Jso incladel< spoocializ.d trial courts or app.Uar coat u Figure 3.1 U.S. Judicial System In this research I will only analyze the content of district and appellate judicial opinions in the federal court system Each state has within its boundaries at least one 107

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federal judicial district, while some states have several district courts (Figure 3.2). The total number of district courts for the fifty states is eighty-nine, plus a district court for each of the following areas: District of Columbia, Puerto Rico; and the territories of Guam, Northern Mariana Islands, and Virgin Islands (Kunz et al., 1992). Geographic Bounct.rles oiUftia.IS....Coucts of Appukaltd Dilbkt Couna Figure 3.2 Map of Federal Courts by Circuit The number of federal districts in each state is determined primarily by population and the geographic size of the state (Wren & Wren, 1986). Federal district courts have "original jurisdiction" when a party seeks to file a civil action that involves the U.S. Constitution or federal laws of the United States (Kunz et al., 1992). 108

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Federal appeals are initiated when a party to a lawsuit in the U.S. District Court seeks to appeal the trial court decision. The federal court system consists of thirteen United States Courts of Appeal. The Appeals Court from the First Circuit Court of Appeals through the Eleventh Circuit Court of Appeals, and the D.C. Circuit, have jurisdiction for a particular geographical area known as a circuit. The Federal Circuit Court of Appeal is located in the District of Columbia and only hears appeals from specialized trial courts; these are not examined in this dissertation. Appellate courts are primarily concerned with whether the law was interpreted correctly by a lower court. Federal courts usually hear appeals in three-judge panels. Each circuit has several panels of judges (Elias, 1986). Published U.S. Courts of Appeal cases guide future court decisions as precedent and provide legal authority for U.S. District Courts within the same circuits and state courts with respect to federal legal issues (Elias, 1986). The final appellate court in the federal court system is the Supreme Court of the United States, which has the ultimate authority of constitutional review and is the ultimate decision maker to determine the constitutionality of a law or action by the federal and state governments. The Supreme Court is considered the highest court in the U.S. Judicial Branch of government, based on the Court's 1803 holding that "it is emphatically the province and duty of the judicial department to say what the law is" (Marbury v. Madison, 1803). The U.S. Supreme Court hears appeals from decisions of the U.S. Court of Appeals, from the highest appellate court of each state when a federal 109

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question is raised, and directly from U.S. District Courts on rare occasions. The U.S. Supreme Court also has original jurisdiction to address a legal conflict as a trial court in certain limited cases. The Content Analysis Research Method The content analysis method is an established legal research technique for studying a broad range of legal subject areas that have social, political, and economic connections. Hall and Wright (2008) identified three distinct components of this research method: (a) court case selection, (b) coding court cases, and (c) court case analysis. The content analysis components are legal research methods that are used to maintain an objective analysis when examining court cases to identify patterns of facts, interpretations, and legal reasoning in the judicial decision making process. It is important that the case selection criteria, based on systematic, objective and replicable processes, identify all relevant cases that address the research question (Hall & Wright, 2008). For my research, I developed objective criteria to select and classify (code) judicial opinions, containing judicial interpretations of campus places, which have produced public fora on different higher education campuses. Court Case Selection My initial step in this legal research method was to select court cases to compare to the Mason v. Wolf(2005) case Hall and Wright (2008) advised that a methodical search of court cases is important in content analysis research, in order to strengthen objectivity and reproducibility of the method. I employed a conventional 110

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legal research case selection method in order to identify campus public forum court cases for this dissertation which I did by searching court cases through the online LexisNexis database In contemporary legal research the most common method to locate court cases is computer searching through the Westlaw and LEXIS online databases (Hall & Wright, 2005) I limited my computer search to federal cases that had alleged violation of First Amendment speech rights. The majority of public forum cases are filed in the federal judicial system (Bausch, 1995). The federal court system has the jurisdiction to address federal questions, especially allegations of violations against the U.S Constitution and all federal laws that emanate from the Constitution The specific law that addresses the violation of constitutional rights is 42 U S.C 1983 Civil Action for Deprivation of Rights; this was briefly discussed in Chapter 1 Sampling Frame Another important step in my case selection process was determining the number of cases necessary to conduct the content analysis of the judicial opinions. Hall and Wright (2008) have advised that a selection method of court cases must consider the case sampling frame and its selection method. They distinguished court case selection as a method that is feasible to identify and isolate all judicial decisions and opinions regarding a specific legal issue. They stated that searching only court cases that have resulted in judicial opinions best provides a researcher the opportunity to conduct a content analysis on all cases of the subject area. Therefore, I limited my 111

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computer search of judicial decisions in the federal court system to a specific time period, type of place, and legal doctrine, so the outcome would be a manageable number of court cases from which to select. An important fact of this dissertation is that the public forum is a recent legal doctrine in the history of the United States Constitution. Therefore, I discuss the history and development of the Public Forum Doctrine in Chapter 4. Selection Method My first step in searching court cases for this dissertation began with the LexisNexis computer search of federal cases, including the words public forum and campus. The first search resulted in 397 federal court cases that had been decided between 1969 and November 20, 2009. I reviewed these case summaries in order to identify public forum court cases in which a physical location on a higher education campus had been the conflict. I selected 50 ofthese cases, because they contained similar fact patterns to the Mason v. Woif(2005) case. The selected cases all involved a conflict over the use of a campus physical place for public expression. I did not include the remaining cases, because the public forum did not involve a conflict over the use of a physical campus place or the speech challenge was not based on an institutional restriction on individual speech rights. l transferred the data from the Mason v. Woif(2005) and the selected public forum court cases to an Excel spreadsheet. In addition to downloading and reviewing the selected cases, I read through the written text of each of the cases in the Federal 112

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Supplements and Federal Reporters at the Colorado Supreme Court Law Library. By doing so, I was able to determine whether the judicial opinions contained illustrations, photographs, or other visual representations of the specific campus places in each of the court cases. This activity was to determine if the case law opinions employed images to communicate visual representations of public fora to augment the written descriptions of the judicial interpretation of the campus place types. Classifying Court Cases My second step in this content analysis method was to classify (code) the judicial opinions based on the facts and legal opinions discussed in the selected court cases. Classifying the judicial opinions is a legal research method that focuses more attention on various elements of cases, in order to identify patterns in the court opinions (Hall & Wright, 2008). Beyond selecting cases, studying the court cases provided me with an opportunity to research how judges resolve campus constitutional conflicts by balancing the principles of liberty and representation embedded in both the campus and the U.S. Constitution. Hall and Wright asserted that the case coding method requires reading selected cases with a greater concentration on the research questions. They said that the first step in coding selected cases is to extract the underlying principles of each case by creating a set of categories to identify common descriptions and patterns in the cases. Each category described a specific fact about the cases: the (a) court case, 113

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(b) legal dispute, (c) legal reasoning of the court, and (d) decision reached by the court in resolving the case. The process of identifying these elements of a court case is the most common use of the content analysis technique in legal scholarship (Hall & Wright, 2008). For this research, I applied the Multidimensional Place-Typing Framework to the Auraria history, definitions of campus, and the Public Forum Doctrine. This enabled me to create a coding system for Mason v Woif(2005) and the selected court cases discussed in this dissertation to classify all the cases by the place-type dimensions identified in the fact pattern of the case. I sorted the public forum court cases by federal circuit to conduct a comparison of the judicial opinions of public fora cases. I created the steps listed in the following section to organize and record a summary of the federal courts cases by circuit and state (Appendix A) and the federal court case inventory (Appendix B). Court Case Analysis My third step in the content analysis method was a content analysis of the judicial opinions of the selected court cases. The content analysis method is necessary to examine the depth of judicial interpretation of public forum law and the details of how the law has been applied to a specific type of place. Coding judicial opinions is a research method designed to connect the findings of legal research with site analysis, in order to identify patterns in court interpretations of campus space. I used archival research to identify patterns in the judicial interpretations of common physical 114

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characteristics of campus place in the public forum categories. I designed a Flagpole PlaceType Model, by examining the flagpole site, planning documents, and other data on the Auraria campus to use in the content analysis of the selected court cases. The Campus Place Public Forum Typology of public fora categories provides insight into the ways judges interpret campus place when determining the public fora category. The first question this research addressed was the interpretation of campus place as public forum. I based the content analysis of the judicial opinions on the legal assessment of those opinions, in order to create the campus-place typology. The detailed analysis of the location includes an assessment of the physical sites, to compare the actual locations of the judicial interpretations in the selected cases. I designed my research method to identify common patterns of physical descriptions, legal principles, and language used in court decisions, which enabled me to describe public fora. I analyzed the content of Judge Figa's legal opinion in Mason v. Wolf(2005) as the central case, in order to create a set of case classifications by which to compare my content analysis to other similar cases. Judge Figa's interpretation of the flagpole area was based on his public forum analysis of the character of the flagpole area to determine the type of public fora category. In Chapter 5, I use the content analysis of Judge Figa's interpretation of the Auraria campus to identify a set of campus characteristics; in order to create a set of form, use, and meaning attributes of place to classify campus place to public forum categories. 115

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I compared the content analysis of Judge Figa's opinion to the other selected judicial opinions to create a campus place public fora typology for comparing physical patterns and characteristics of the campus places by the form, use, and meaning place attributes. I then conducted a place-typing analysis of the Auraria campus to compare the judicial opinions, to analyze and compare the physical characteristics and specifics on the campus spaces and layouts in the selected cases to the public forum categories. PlaceType Assessment I mapped Auraria's legal landscape by conducting a site analysis, archival review, and examination ofplanning documents to review and type judicial campus places, based on Judge Figa's interpretation of the legal status of the flagpole area on the Auraria campus. I then compared the Mason v. Wolf(2005) judicial opinion to the other selected cases, to identify patterns in those judicial opinions and interpretations of the characteristics of those campus places. Judicial opinions are a communicative device of court case law and the legal system; however, the judicial opinions in the public forum cases I selected rarely contained visual aids of the places that had been interpreted by the judges. The lack of visual illustrations relegated those case laws to one-dimensional texts that lacked multidimensional representation of place, in my opinion. Therefore, I have included photographs and diagrams of the court cases, to provide a multidimensional perspective of the judges' interpretations of the campus places as public fora. These 116

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visual representations include archival documents of the physical locations, historic and material information on the backgrounds, and contemporary aspects of places that were not included in the judicial opinions. The use of visual materials and the Multidimensional PlaceTyping Model supplements the content analysis of judicial opinions to identify the similarities between social constructions of place with legal interpretations of the places as public forum categories. Benefits of the Research The content analysis method of research provided an opportunity to gain insight into and compare federal circuits when examining how judges interpret physical locations as campus place. The process of comparing court cases among the federal circuits also provided insight into judicial interpretation of campus place by region of the country and federal circuit. Understanding the judicial decision making process and determining variances among federal circuits in the interpretation of campus place as public fora, are important data to identify and map. This research and mapping of the judicial distinctions of public forum differences provided awareness of the interpretation of campus place as public fora across the country. Chapter Summary The subject of this chapter was the legal research method to approaching the content analysis of judicial opinions The case law process, United States legal system, operation of the federal court system, and means of judicial opinions were detailed to show how constitutional case law is produced The components of the 117

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content ana(vsis method of case selection, case coding, and case analysis were explained to identify the research methods used in this dissertation. The benefits and limitations of this dissertation were discussed, along with an explanation of the delimitations of legal research on judicial opinions. I apply the "Aspects of Place" framework to Auraria's history and development in Chapter 4, the multiple definitions of the word campus in Chapter 5, and the evolution ofthe Public Forum Doctrine in Chapter 6 to create a Flagpole PlaceType Model. The examination of the place aspects of the each of the three place-types in the Flagpole PlaceType Model provides a broader contextual insight into the identity, image, and interpretation of the flagpole area's interpretation as a city, campus and a public forum. 118

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CHAPTER 4 AURARIA PLACETYPES Introduction This chapter examines Auraria as a case study on how the multidimensional aspects of place provide context to the specific research question, "How do judicial interpretations of campus place in constitutional law produce public fora on public higher education campuses in the United States of America?" Below I draw on Franck and Schneekloth's (1994) place-typing model on the transformation of a physical location, to examine the broader context of the place-type aspects of Auraria as a case study in Denver, Colorado. The study of Auraria provides a broader context for the history and development of Auraria as a background to the secondary research question, "In the Mason v. Wolf(2005) case, how did Judge Figa's interpretation of the flagpole area as a type of place produce a public forum?" I have incorporated the different theorists and terms from the Multidimensional PlaceTyping Framework to examine the multidimensional aspects the Auraria campus's transition, over time, as a type of place. 119

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Auraria As a PlaceType Judge Figa s opinion on the brief history of the flagpole area in the Mason v. Woif(2005) case did not elaborate on the changes in Auraria s character from a nineteenth century gold camp to a twenty-first century higher education campus. The place-typing analysis explains how conflicts over the multiple interpretations of Auraria produced and reproduced a multidimensional place during the last century and-a-half, by different interventions and institutions. The first section of place-typing on the history of Auraria is an overview of the material aspects of the place in the development of Denver as both a physical location and social environment. The second section reviews the imaginal aspects of Auraria as a social community and neighborhood. The third section addresses the conceptual aspe c ts of Auraria as a conceived urban renewal site and higher education campus. The historic development of Auraria as a place dates back over 144 years, long before Keith Mason's conflict with the AHEC staff on April 12, 2002, over the use of the flagpole area. The earliest aspect of Auraria focused on the location as a material place within the context of the historic development of Colorado and Denver. Auraria evolved, over time, from an historic one-dimensional material place-type into three-dimensional imaginal and conceptual place-types Examination of Auraria as a natural space provides insight into the origins of early Auraria as a precursor to the contemporary interpretation of the place as a type of public forum. 120

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The history of Auraria's transition from a space into a place, although with continual conflicts and conquests, is an important precursor to examining how Judge Figa interpreted Auraria's flagpole area as a public forum category. Patricia Limerick, a Western historian, wrote in her 1987 Legacy of Conquest, "The conquest of land begins with drawing lines on a map, defining and allocating ownership, and the evolution of the land from matter to property" (1987, p. 27). She stated that the conquest process had consisted of two junctures: (a) the frontier phase, when lines were drawn to define territory and property boundaries, and (b) the subsequent meaning and power used to reinforce the territories. She described this conquest process as forming "the historic bedrock of the whole nation, and the American West [as] a preeminent case study in conquest and its consequences. Conquest was a literal, territorial form of economic growth" (1987, p. 27). The history of Auraria, as a space carved out of a prairie that was continually reinvented through conflicts and conquests to become an urban campus, has provided a contextual insight into the contemporary Auraria as a multidimensional place-type. The history of Auraria's evolution as a place-type is charted below for a visual representation of the changes to the physical location as a material, imaginal, and conceptual place-type (Table 4.1). The flagpole area's transitions as a multidimensional place originates when boundaries were drawn in the frontier phase to produce Auraria as a place and has been continually been redrawn by different institutions that redefined the area's image and identity as a type of place. 121

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Table 4.1 Auraria Place-Types I Auraria As a PlaceType -==========11 Conceptual j Auraria -IIAuraria s I Auraria-;;--!Auraria as a Denver urban I j11Founding as a l f transition into 11renewal site and the 1 1camp and west iDenver's Auraria Higher Education i _ _jjDenver barrio I1Center campus Auraria As a Material Place The earliest concept of Auraria was as a material place, the type of place Agnew (1987) described as a location within a territory on the map of the United States. The material aspect distinguishes the place from other human settlements; yet the features of the location were historically constituted and changed over time (Wells, 2007). flagpole area, on what eventually became the Auraria campus, originally was part of a larger area occupied by the Arapaho, Cheyenne, and Ute Native American tribes (Leonard & Noel, 1990). Through different governmental actions, the land eventually was claimed as property of the United States of America. The area where the flagpole is located was acquired by the United States in several land purchases, including the 1803 Louisiana Purchase and the 1848 Mexican Cession (Figure 4.1). This government action produced what Soja (1996) described as firsts pace, establishing boundaries that delineated the area as a territory of the United States of America. 122

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The area was incorporated as part of the boundaries of the western section of the Kansas Territory. Eventually, the Territory of Colorado was created by Congress on February 28, 1861 ("Colorado Territory," 1861) and admitted into the Union as the State of Colorado on August 1, 1876 ("Colorado Statehood," 1876). Figure 4.1 U.S Map of Territories (Map courtesy ofNational Atlas of the United States) The area identified as Auraria was founded by William Russell and fellow gold prospectors during the latter part of 1858, as the first non-native settlement in the region (Leonard & Noel, 1990). Russell discovered placer gold in the South Platte River during the summer of 1858. After he and his fellow gold seekers traveled 123

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throughout the region, seeking other gold sites that summer, they returned to the confluence of Cherry Creek and the Platte River to establish a settlement on November 1, 1858. Russell named that settlement the "Auraria Town Company," after his hometown in Georgia (Leonard & Noel, 1990). Auraria, Georgia, the location ofthe first major gold strike in the United States, had been worked by slave labor to extract the precious metal (Noel, 2006); the word Auraria is derived from the Latin word aurum meaning gold (Leonard & Noel, 1990). Russell imaginally linked Auraria, Georgia, to his aspiration that the location at the confluence of the Platte River and Cherry Creek would become the nucleus of another gold rush that would create a new town on the west side of Cherry Creek (Noel, 2008). Each organizer of the Auraria Town Company received a town lot that measured 66' x 132' feet, on the condition that a house promptly would be built, measuring "at least sixteen feet square and comfortable to live in" (Etter, 1972, p vi). The Auraria settlement soon was joined by a group of settlers from Kansas who were seeking to establish a town on the western edge of the Kansas frontier (Figure 4.2). On November 23, 1858, William H. Larimer, a town site speculator, founded the Denver City Town Company across Cherry Creek and east of the Auraria settlement (Abbott, Leonard, & Noel, 2005, p. 47). Originally a politician from Pennsylvania who had traveled west in 1854, Larimer already had spent three years attempting to establish Larimer City, Nebraska, as a great city of the plains. Upon 124

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hearing of the gold strike in the Pikes Peak region, he traveled west again to create a settlement here. Upon arrival in this area with his son and approximately twenty-five men, he found the west banks of Cherry Creek already occupied by Russell's group. Figure 4.2 Early Drawing of Auraria Settlement (Courtesy Colorado History Museum) Larimer also found the east side of Cherry Creek to be an undeveloped and unprotected settlement called St. Charles; the majority of the members of the St. Charles Town Association had returned east to obtain a territorial charter and had left the settlement under the control of Charles Nichols. According to Denver folklore, Larimer furnished Nichols with liquor and convinced him to sign over the St. Charles 125

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Town claim (Abbott, 1976). Larimer renamed the newly acquired town "Denver" to gain favor over Auraria with the Kansas Territorial Governor, James Denver. The creation of the towns of Auraria and Denver City was the first step in the development of this region as a sustained economic entity. The Auraria and Denver town companies initially were strong rivals, each seeking to acquire and establish its own town as the primary location for economic sustainability and development of the area. Auraria preceded Denver by having the first school, located in a log cabin on Twelfth Street between Larimer and Market, as well as the first newspaper, the Rocky Mountain News, which was on the second floor of Ric hens Wooton's saloon (Leonard & Noel, 1990). Eventually Denver leaders were able to distinguish Denver from Auraria by taking advantage of Denver's location and commercial success. Denver obtained the first stagecoach connection, by offering Denver lots and Denver town shares to the Leavenworth and Pikes Peak Express (Leonard & Noel, 1990). The acquisition of the stagecoach station gave Denver a significant advantage in city building and in becoming the "commercial and financial center of Colorado" (Smiley, 1971, p. 246). Denver's location on higher ground and its opportunities for economic development continually overshadowed Auraria's geographic location and economic viability (Figure 4.3). Auraria's physical location dictated the relationship to Denver and substantially influenced the development of both cities. 126

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Figure 4.3 Sketch of Denver Overlooking Auraria (Courtesy Colorado History Museum) (from Frank Leslie's Illustrated Newspaper, New York, December 15, 1860) William Russell's discovery of gold in Cherry Creek and the Platte River earlier in the summer of 1858 is credited with starting the Colorado Gold Rush, also known as the Pikes Peak Gold Rush. This gold discovery and the subsequent speculations on the amount of gold in the region, triggered one of the greatest mass migrations in U.S. history (Noel, 2006). However, the gold speculation never met expectations; gold seekers soon went bust and either returned home or found other occupations and settled in the area. Russell and his fellow Southerners eventually left in 1861, returning to Georgia to fight in the Confederate Army during the Civil War. 127

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In Colorado A History of the Centennial State (Abbott et al., 2005), Carl Abbott, Stephen J. Leonard, and Thomas J. Noel quoted writer Henry Villard (1932) who had assessed that the mass migration to the West was comprised of Larimer and other town-site speculators who had cared "less for good placers than [for] promising places," while engaging in the "popular Anglo-American art of town making" (p. 47). Larimer too, eventually left, returning to Kansas in 1863, embittered over Denver's flat economy and his failure to get elected as mayor. Russell's and Larimer's town-making activities of producing rival towns on the separate banks of Cherry Creek, in fact, reconstituted the material form of the region. Their town-making process produced lines on a map to define the borders of the new town's territories and establish private and public property boundaries as the open frontier faded into history. The next juncture identified by Limerick ( 1987), was the establishment of meanings and power to reinforce the territories that had been defined by borders and represented on maps. The borders that were being established eventually defined what would become the Auraria campus, within the broader context of creating the Colorado region and the United States. Both Auraria and Denver continued to expand into multidimensional places that lacked local governance and laws The citizens of the two towns sought to maintain a sense of order as well as place, by creating shared governance committees to manage the competing claims and activities. Area citizens organized their own claims clubs and peoples courts to control unruly and illegal behaviors (Abbott et al., 128

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2005). Problems with lawlessness were so widespread that an editorial on September 13, 1860, in the Western Mountaineer endorsed dispensing vigilante mob justice at the end of a rope: Leaving justice to a vigilante committee Much as we deprecate mob violence or the working of Lynch Law and no one can be more conscientiously or sincerely opposed to it-we can in the present juncture see no other alternative than to resort to the extreme measures that have been adopted. Our "people's court" has become little better than a farce, and, no other, is recognized. (Western Mountaineer, 1860) Claims clubs were formed in frontier territories by miners, farmers, and land boomers; members agreed to respect and defend each other's claims until federal land surveys had been conducted and individuals were allowed legally to purchase their own claims (Smiley, 1971 ). Area residents formed their own government, to establish a system of legal authority to own and manage their land claims through selfgovernance while continuing to petition for official territorial representation in Washington D.C. The business leaders in the area published a marketing pamphlet, titled "Denver City and Auraria, The Commercial Emporium of the Pikes Peak Gold Regions," to describe the business opportunities in the region. The pamphlet provided a history of the creation of the two towns and their current services, amenities, and governance. The section on "Land Titles" provided contemporary information on the status of property rights to own land in the area: Whoever holds town or other real property in the gold regions, holds it by virtue of"squatter sovereignty," and no official surveys having ever been made of the country it question, it cannot be otherwise. Efforts will be made this winter in Washington to secure Congressional legislation necessary to remedy this evil. The squatter title will, of 129

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course, be ultimately good. Real estate in Auraria and Denver is now held by dint of certification of original and transferred titles, issued under the authority of the Town Companies. All these instruments have to be properly recorded. (Denver City and Auraria Business Directory, 1860, pp. 16-17) These claims and ownership of real property were without official sanction; and the two town companies were the only official representatives of their respective areas to "convey town property keep records, levy assessment, etc., etc" (Denver City and Auraria Business Directory, 1860, p. 18). The pamphlet was a marketing approach to attract new people to the region in order to sustain the economic development by increasing the population growth. The Creation of Centralized Government The people of Auraria and Denver worked together to stabilize their lives and protect their private-property interests, while seeking to sever the existing territorial authority of Kansas and to create a new government in the foothills ofthe Rocky Mountains. In Colorado, A History of the Centennial State, Abbott et al. (2005) wrote: "Despite the fierce rivalry between the two companies of speculators, the towns functioned together as a unit from the start" (Abbott et al., p. 47). The residents were engaged in creating what Agnew (1987) described as their locale, by occupying and reinventing the towns to represent the local citizens. Auraria was the site of several public gatherings over the governance of the area. Both Auraria and Denver residents met at Wooton's Hall in Auraria on April11, 1859 to create their own civil government, because they did not believe that Kansas Territory officials were being 130

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responsive to their needs (Smiley, 1971 ); that location was approximately four hundred yards northeast of the current flagpole area at Tenth and Lawrence. The citizens proclaimed that "on account of our distance from, and difficulty of communicating with, the proper authorities, we the people who are the power here, authorize the late county officers to enter at once the discharge of their respective duties" (Rocky Mountain News, April 23, 1859). On October 24, 1859, the residents of the two towns voted to create Jefferson Territory as a new government. Despite the fact that Jefferson Territory was not sanctioned through the federal government, nor recognized by the Kansas Territory (Abbott et al., 2005 p 56), the citizens of this region sought to maintain Jefferson Territory as a legal governmental entity. In History of Denver, Colorado historian Jerome Smiley (1971) commented that the act of creating a sitting government and subsequent election of a city staff "had no better standing in law than had the source from which it derived its power" (Smiley, 1971, p. 324). The settlers were challenging the "top down" political space that had been created and maintained out of Kansas, to create their own political place from the bottom up. One of the first acts by the residents of the newly formed Jefferson Territory was to combine the two smaller towns of Auraria and Denver into a larger, contiguous town of connected governance, streets, and bridges that spanned Cherry Creek. 131

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The Auraria and Denver Street Grid The relationship between Auraria and Denver initially began as a disconnected and disjointed association due to the separation of the two towns by Cherry Creek Initially similar in size, the towns were platted based on alignment with different natural features. Auraria's streets were platted in a southeast-northwest direction paralleling Cherry Creek while Denver's street grid was platted in a southwest-northeast direction paralleling the South Platt River. The original Auraria street naming system was different from the Denver naming plan. Auraria's streets platted to parallel Cherry Creek were symbolically named Front Street, Cherry, Ferry Street Saint Louis, the Native American tribes Cheyenne and Arapahoe and the U .S. presidents Washington, Adams Jefferson and Madison. Auraria' s cross streets platted perpendicular to Cherry Creek were named numerically, beginning with First Street located on the east side of Auraria. Denver's streets platted parallel to the South Platte River were named after local business leaders and their wives, as well as one mistress. Denver's cross streets platted perpendicular to the South Platte River were assigned letters from the alphabet, starting with "A" Street, which was platted next to Cherry Creek. The merger of Auraria and Denver towns in 1860 required a readjustment to the street names, including renaming Auraria's streets to match the corresponding ones in Denver (Goodstein, 1994). Denver's street names that paralleled the Platte River continued, as did the names on both sides of Cherry Creek. The cross streets on 132

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both sides of Cherry Creek were changed to numeric streets, starting with First Street on the west side of Auraria (Figure 4.4). Figure 4.4 Map of Auraria and Denver Streets 1859 (Image courtesy Denver Public Library) 133

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The current location of the flagpole area at the current Auraria campus was changed from St. Louis Street to Tenth Street and Sixth Street to Lawrence Street. These street name changes solidified the unity between the two towns of Auraria and Denver, beyond the disjointed street junctions at the Cherry Creek border. The streets and bridges created in Auraria and Denver are physical artifacts that shaped the relationship between the two towns and that continue to define the connections between the Auraria campus and City of Denver. Auraria Becomes West Denver The bottom-up placemaking actions of residents of the region to create the Jefferson Territory failed, however. The citizens of Auraria and Denver took the matter into their own hands in a meeting on December 26, 1859, to confirm and initiate the creation of an official "City of Denver" (Smiley, 1971). In the following March of 1860, a mass of Auraria citizens met to decide on consolidating with Denver City, and proposed: Whereas, the towns at and near the mouth of Cherry Creek are, and ought to be one; therefore, be it. Resolved, that from this time, Auraria proper, shall be known as Denver City, West Division, and we hereby authorize the board of directors to change the name on the plat, accordingly. (Smiley, 1971, p. 324) This proposal to combine the two towns into one was approved by a majority of voters on April3, 1860 (Jones & Forrest, 1973); and the new city of Denver was created during a moonlight ceremony the evening of April 6, 1860, on the recently constructed Larimer Street Bridge (Leonard & Noel, 1990). 134

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Auraria gained a level of stability through its consolidation into the new city of Denver, though it lost its identity in the process. Smiley wrote that after the consolidation of the two towns, Auraria "passed away and became a most interesting memory" (1971, p. 324). The consolidation of the two cities also did little to advance Auraria's development and stature. Whereas, Denver was being transformed from a frontier town of substantial buildings made of brick, west Denver (Auraria) remained a settlement of wooden structures and temporary appearance (Leonard & Noel, 1990). The flooding of the area in 1864 further eroded Auraria's viability as an attractive location for development (Figure 4.5). Figure 4.5 Larimer Street During Flood May 19, 1864 (Photograph courtesy Denver Public Library) 135

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Now known as "west Denver," Auraria existed under Denver's shadow, as Denver was the preferred place for significant economic and social development in the region. Auraria's now precarious position as a second-city status is detailed in the following excerpt from an 1867 Colorado Transcripts newspaper article on Colorado towns: Today, February, 1867, Denver is a fine well-built town, with many fine blocks of building which in any city would be considered as excellent; lying on the east side of Platte, it is capable of indefinite extension north and east, but its formerly flourishing suburb, "Auraria" afterwards West Denver, has lately become a less prominent part of town since the great freshet of 1864, which threatened to make Denver on of the things that were. ( 1867, p. 1) The United States Congress eventually created the Colorado Territory on February 28, 1861, within the same boundaries as Jefferson Territory ("Colorado Territory," 1861 ).The U.S. Congress released, in 1864, federal claim over a portion of Denver's 960-acre area, called the "Congressional Grant" clearing title for private ownership (Denverinfil, 201 0; Goodstein, 1994). It would take another twelve years before Colorado was admitted as the thirty-eighth state in the United States, on August 1, 1876 ("Colorado Statehood," 1876). Development ofthe community was transitioning from a group of individuals into a governmental agency, initiating a bottom-up approach by reinventing Auraria and Denver City into a unified place of power, prosperity, and permanence. 136

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Auraria As a Place of Architecture, A1aps, and Markers The Auraria campus today maintains the symbolic markers and architecture of Auraria as the first settlement and oldest neighborhood in Denver, preserving the memories. Interpretive tools, such as the Sandborn insurance maps, provide a visual context of how the homes in west Denver were built, in a traditional urban grid pattern in close proximity to different types of industrial businesses. The photographs and history of the material aspects of Auraria (west Denver), as well as its historic significance, are included in architectural books that celebrate Denver's significant physical locations and buildings. The architecture of west Denver that preceded creating the Auraria higher education campus is comprised of historic artifacts that symbolize the significance of the site and memorialize a fixed period of time in Denver's history. The following Sandborn maps of the west Denver neighborhood reflect the types of dwellings, commercial, cultural, and educational structures that were building in the area of the Tenth and Lawrence intersection in 1887 (Figure 4. 6). The Sandborn maps are interpretative tool that identify the material aspects of Auraria as a fixed location prior to any transformation as a new place-type. 137

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! -. l -.... I :.'1 I I l .. l --' zi L--' r "'S"f" ... ..... .., ........ .._. ....... _"_"' _ _,_ ........... -. __ -,.t--:. _____ .JL_,.. ..... -, . "'"'-r---------------...;f . Figure 4.6 Sandborn Map Tenth and Lawrence Area 1887 (Image courtesy Denver Public Library) 138

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The visual history of the Auraria architectural development is documented in Auraria: Where Denver Began a photographic narrative of Auraria's buildings and landmarks by Don and Carolyn Etter ( 1977). After these authors' became aware that the area was going to be demolished to create the new higher education center, they set out to preserve memories of Auraria as a community. They described Auraria as one of the few complete communities in Denver that had supported a wide "spectrum of urban life" and had not been simply a business or residential district (p. vi) The Etters successful argued for the preservation of some of the old Auraria structures They are credited with founding Historic Denver, Inc. and preserving an entire city block, which was officially designated in 1973, in the National Registry of Historic Places, as the Ninth Street Historic District (Noel 2006) The Ninth Street Historic District consists of thirteen Victorian houses and a grocery store that was built between 1872 and 1906. These structures were also preserved as part of the Auraria campus; the homes were converted and used as campus offices. The grocery store is currently in operation as a sandwich-and-coffee shop that is used by Auraria campus students. The Ninth Street asphalt was removed and replaced with grass to create a park-like setting (Figure 4.7). The Auraria campus contains and uses other buildings that were saved from destruction. St. Cajetan s Catholic Church (meeting rooms), St. Elizabeth's Catholic Church (church), Emmanuel Sherith Israel Chapel (art gallery), and the Tivoli Brewery (student center), are all still functioning structures on the campus. Auraria 139

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campus facilities are featured, along with photographs, in Denver Landmarks & Historic Districts (Noel, 1996). The Guide to Denver Architecture (Denver Foundation for Architecture, 2001) includes a broader selection ofthe Auraria Higher Education Center Campus, including the library and North Classroom Building, the two buildings that anchor the Lawrence Street Mall. Figure 4.7 Ninth Street Park (Photograph by author) Don and Carolyn Etter's (1977) book, along with other maps, documents and photographs on Auraria's history, have memorialized the material dimensions and visual text of the historic aspects ofthe region. The visual aspects of Auraria and west 140

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Denver are single-dimension representations of how their social systems were produced and maintained in the Denver metropolitan area. The Ninth Street Park District is identified by a marker that contains information on the history of the park and the Auraria community (Figure 4.8). The marker memorializes the Ninth Street Park District as a significant campus place. In addition, the marker establishes an institutional identity that symbolizes the Auraria's past as a frontier settlement and ethnic community. Figure 4.8 Ninth Street Plaque (Photograph by author) 141

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The Tenth Street marker is similar to an historic marker erected in Auraria, Georgia (Figure 4.9). Both markers are textual markers that memorialize the production of material places, and both identify William Russell's connection to both locations as material places. Figure 4.9 Auraria, Georgia Historic Marker (Photograph courtesy of Flicker) The material artifacts examined in this research are interpretive tools to examine the objective knowledge of the historic context of the social systems that produced Auraria. However, the material places are not neutral places, because the physical settings were formed and embedded within subjective social hierarchies (Shein, 1997). Interpretation of the material aspects of the flagpole area, as an historic aspect of where the place was produced, lack depth without an examination of the 142

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social aspects of how the place was produced over time. Therefore, this research on the multidimensional aspects of physical locations examined how the material place was produced and memorialized through the social experiences (Hayden, 1995; Wells, 2007; Wridt, 2004) The memories and narratives of the residents, who produced west Denver within the broader social context of Denver, are explored in the next section. West Denver As a Imaginal Place Apart West Denver as a material place, and Cherry Creek as a natural border between the Auraria and Denver settlements, had a profound influence over the development of both locations, due to flooding of the Auraria area in 1864, 1878, 1933, and 1965. The Cherry Creek and South Platte River floods diminished the value and viability of the Auraria area, because residents moved to Denver's higher and dryer grounds, which left the west Denver area to commercial industry and transitional housing for newly arriving immigrant populations (Leonard & Noel, 1990). The west Denver location was a primary residential setting for Italian and German immigrants who arrived in Denver in the 1860s (Jones & Forrest, 1973). The location developed into a working-class neighborhood of low-income housing and industry, because the new immigrants were attracted to the cheap housing near their factory jobs (Leonard & Noel, 1990) (Figures 4.10 and 4.11 ). 143

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Figure 4.10 Lawrence Street from Eleventh Street (1890-1900) (Photograph courtesy Denver Public Library) Figure 4.11 Lawrence Street Houses Near Tenth Street (1890-1900) (Photograph courtesy Denver Public Library) 144

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The cultural development of west Denver produced material expressions that still exist today. The Emmanuel Chapel was built on the northeast corner of Tenth and Lawrence Streets in 1877 as an EpiscopaJian Chapel. The structure is recognized as the oldest standing church structure in Denver; the chapel was sold in 1903 to a Jewish congregation on West Colfax called Little Israel, and converted into a synagogue known as the Tenth Street Shul (Emmanuel Gallery, 2010). In 1898, the German residents of west Denver had commissioned building St. Elizabeth's Catholic Church. Both of these architectural developments reflected the changing cultural developments in the west Denver community. The west Denver culture continued to evolve in the 1920s when Hispanic families, arriving from Mexico and New Mexico, began moving into the west Denver neighborhood (Seferi, 1970; Summers, 2001 ). The newest arrivals contributed to the expanding social diversity in the community, while encountering the cultural territories that defined the west Denver boundaries. Tensions between the different ethnicities resulted in creating separate west Denver places of worship and schools for the Hispanic residents. After the German Catholics complained about the Hispanic residents attending services at St. EJizabeth's Catholic Church, the Hispanic residents created their own place of worship (Gallegos, 1985) The Hispanics residents raised funds to have the St. Cajetan's Church built at the intersection ofNinth and Lawrence Streets in 1926. The same residents also financed the building of the St. Cajetan's 145

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Catholic School in 1937 because their children were restricted from attending the segregated west Denver Catholic schools (Gallegos, 1985). The cultural dimensions of west Denver continued to change as European immigrants moved out of the neighborhood and assimilated into other neighborhoods in the Denver metropolitan area. Vacancies left by the European immigrants were replaced by the expanding number of Hispanic families that moved into, or stayed in, the west Denver neighborhood. West Denver became a place of social networks, permanence, and cultural pride for the increasing number of Hispanic families moving into the neighborhood. West Denver, separated by Cherry Creek and surrounded by major streets and railroad yards and factories, was an isolated area outside the broader development of Denver; at the same time, west Denver was developing into an imaginal insulated place for the Hispanic residents. The social identity of west Denver changed into a cultural enclave when the residents unofficially renamed the area the "westside barrio" (Summers, 2003, p. 39). This social transition of west Denver represented a changing vernacular landscape of social relationships, where the Hispanic residents established their identity and meaning as a secondspace (Soja"s, 1996) or sense of place (Agnew, 1987) in their bottom-up construction of place. The westside barrio was produced by residents who were repositioning west Denver into an image that symbolized the west side as a cultural place. Despite this symbolic name change, which represented a cultural change west of Cherry Creek, 146

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the west side was still bottom land and it flooded in 1933 (Figure 4.12) and in 1965 from both Cherry Creek and the South Platte River. Figure 4.12 Aerial View 1933 Cherry Creek Floodwater (Photograph courtesy Denver Public Library) The South Platte 1965 flood was, at the time, one of the worst catastrophes in Colorado history (Brabek & Boggs, 1968), and it significantly contributed to the demise of the westside barrio. As a result the blighted neighborhood was deemed a "prime candidate for urban renewal" (Kronewriter, 2005 p. 99). Further justification 147

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for the urban renewal was the lack of commercial viability and a strong tax base, because the city of Denver overshadowed the value of the westside barrio. The decline of the west side's viability led to creating the Auraria Urban Renewal Project in 1969, designed to convert this South River Valley area from a deteriorating neighborhood into an urban campus, as part of revitalizing the Denver business district (Abbott, 1977). The primary objective of this urban-renewal project was to eliminate what was identified as "existing environmental deficiencies," by clearing out the "existing deteriorated area" and redeveloping it with a "Higher Education Center" (HUD, 1971, p. 1) This urban-renewal project was the newest intervention, as a placemaking method, in changing the material aspects of the flagpole area into a new place-type. This urban-renewal project was gained through the relocation of Auraria's 155 families, 70 individuals, and 237 businesses (Gallegos, 1985). The "Auraria Project" initially was unopposed by residents, because they did not realize that the Auraria redevelopment plan referred to their neighborhood, because the area residents identified their neighborhood as the westside barrio (Summers, 2001). The residents eventually were informed about the program when leaflets and flyers were placed at their doors on the Sunday before the Denver city-wide vote to determine if Denver would allocate money to purchase the west Denver properties to create the higher education campus. 148

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Upon realizing that the Auraria redevelopment discussion was based on their removal, the Hispanic community residents mobilized; they used St. Cajetan's Catholic Church to assemble, petition, and challenge the relocation plans (Gallegos, 1985, 1990, 1991; Kronewriter, 2005). Their attempt to prevent transforming their community was unsuccessful; however, the new AHEC system made available college scholarships to these Auraria residents to attend the three new higher education institutions at the future Auraria campus (Abbott, 1999). Then when the campus was created in the 1970s, the residents were able to ensure that St. Cajetan Catholic Church would remain as a physical artifact of the west Denver neighborhood. West Denver As a Sense of Place West Denver also was produced as an imaginal place within the social lives and experiences of the Hispanic community that lived west of Cherry Creek. Much of the literature that has recorded the historic significance of the Hispanic's community emotional attachment to west Denver corresponds to Agnew's ( 1987) sense of place. Numerous narratives of the lives and experiences of west Denver inhabitants have added to the dimensions of Auraria as a multi-cultural imaginal place. This section focuses on the personal aspects of the west Denver community as an imaginal place, supplementing Auraria's material aspects. Magdalena Gallegos, born and raised in west Denver, authored The Forgotten Community: Hispanic Auraria in the Twentieth Century (1985); Hispanic Life in 149

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Auraria, Colorado: The Twentieth Century (1990); and Auraria Remembered ( 1991 ). She interviewed the Hispanic residents of west Denver to preserve the memories of the community, and used those narratives and photographs to emphasize that west Denver was a location of personal history as a community. Her approach focused on the imaginal aspects of west Denver as a social place within the boundaries of a material location. The relocation of Auraria's residents has been the focus of two studies on urban renewal. Jodie Summers' (2001) master's thesis, Auraria: From Neighborhood to Campus, is a case study on the national practices of the urban-renewal process and the politics of the Auraria Project. She compared the Auraria Project with urban renewal projects in Detroit, San Antonio, and San Francisco "to reveal a comprehensive history of Auraria, while placing the story into a national context" (Summers, 2001, p. 7). Summers asserted that her case study was an objective assessment of the historic development of Auraria. She critiqued Gallegos' research (1985; 1990; 1991) as idealized memories of the social associations and community memories. She criticized Frank Abbot's book The Auraria Higher Education Center (1999) as institutional memory that touts only the accomplishments of creating the Auraria Higher Education Center campus. Summers (200 1) concluded that it is important to present a balanced assessment of Auraria when examining the multiple interpretations of Auraria in comparison to other locations; because the imaginal aspects of a 150

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location can generate emotional assessment of a place-type that influences the objective interpretation of the case study. Citizen participation in the urban-renewal process was the focus of Mania Seferi 's (1970) dissertation, Resident Participation in Relocation Planning: The Case of the Denver Neighborhood of Auraria. This case study on the national practices of the relocation process in urban-renewal projects explored the politics of urban renewal from the perspective of the people in the renewal area Seferi reviewed relocation research from across the United States and created an index of relocation studies in the United States, which identified a set of variables to address interpersonal reactions to relocation due to urban-renewal projects. The "research was conducted for the residents of Auraria in planning successfully for their relocation" (Seferi, 1970, p. 96). The author also worked with the Auraria Residents' Organization, to develop a survey to collect community demographics information during the relocation process; and also helped to organize a community action plan to create citizen participation during the relocation process. I adapted both Seferi (1970) and Summers' (2001) research models, of comparing case studies on Auraria to other urban-renewal sites, as the model for my own research method to compare the public forum case study of Auraria to other similar court cases across the country. The social interactions in west Denver provided a contextual understanding of the development of an imaginal place produced through emotional bonds and social experiences of the inhabitants in the 151

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westside barrio. The flagpole area is a multidimensional place that represents layers of cultural history that influenced the development of Auraria The imaginal aspects of west Denver link the material aspects of Auraria's origins as a frontier campground to its contemporary conceptual place as a higher education campus. Auraria As a Conceptual Place Auraria s re-emergence as the Auraria Higher Education Center was reinvention through the urban development of Denver's Central Business District. Auraria' s potential as a higher education campus represented a new type of economic viability and a new type of public place in Denver. The threat of flooding by the South Platte River and Cherry Creek was reduced by flood mitigation work and construction of the Chatfield Dam by the Army Corps of Engineers (Lamar Kelsey & Associates., 1971 b). This mitigation of the area's sensitivity to flooding was part of a material redevelopment that changed the status of the area from blighted bottom land. The Auraria area was finally an attractive location for growth as a new type of place, educational as well as viable economically. Colorado state funds and a capital bond approved through a Denver city election, plus funds from the U .S. Department of Housing and Urban Development (HUD) and funds administered by the Denver Urban Renewal Authority (DURA), were all combined to purchase all private property in the area, which was deeded to the State of Colorado The Denver city streets of Lawrence and Larimer remained city streets until Denver exchanged property with AHEC to create the Auraria Parkway in 152

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1988. This land transaction began a new transition of changing west Denver into a new public place, renamed the Auraria Higher Education Center (AHEC). As a higher education campus, Auraria became a different type of place and an example of Soja's "thirding as Othering" (1996, p. 81 ). The reorganization of the Auraria campus location transformed the area into a thirdspace combining it materially and symbolically as the higher education campus. The production of this new type of public property created new conceptual places-types that were contextually linked, by use and meaning, to this city of Denver campus. The planning and design documents of the Auraria Project show how the campus planning process intended to produce a meaningful place out of the west Denver location At a five-day AHEC Site Planning Workshop conducted by Lamar Kelsey & Associates the week of August 27, 1970, different concepts on the design of the campus were presented. Significant comments were made by Marvin Hatami, including, "if the Higher Education Center were to be truly urban in nature, similar to the city in spirit and function, there must be heterogeneous pattern ofland-use, which would bring many functions other than higher education to the site." Hatami felt that "people must live, work, and play on the site or the Higher Education Center will be just another campus rather than a meaningful part of the urban scene (Lamar Kelsey & Associates., 1971 a, p. 51). A problem the workshop participants sought to overcome in the planning process was to have the Higher Education Center "effectively woven into the fabric of the city" (Lamar Kelsey & Associates., 1971a). 153

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The plans for the new campus were being developed in relation to maintaining the existing relationship to the material aspects of the surrounding city streets. Architectural case studies on the planning and operation of the Auraria campus have provided historic insight into its intentional physical development. Concepts and statements by the architects who planned the documents provide insight into their intention and expectation for the use of the places. Robert Kronewitter, a planner who later became the AHEC Campus Architect wrote for his case study that the Auraria campus was a catalyst for economic development and had a "major positive impact on Denver s inner city including development of community functions, historic landmarks, access to the Denver Central Business District, and beautiful parks and parkways" (2005, p. 113). The planning sessions and final report both promoted pedestrian circulation links to the Denver street grid, including elevated walkways over Speer Boulevard, citing that overhead bridge plazas have a potential to become exceedingly pleasant visually, expressing in a very strong sense the connection of the Higher Educational Center to the City which it serves" (Kronewriter, p. 1 06). Regarding the Project planning meetings, he added: There was considerable debate at the beginning of the planning process about whether Auraria should be conceived as an urban campus leaving the street system in place with buildings aligning sidewalks or as an urban park, which would locate buildings sensitively within a large open green space. Early planning studies extending several miles in each direction of the campus showed a lack of park space in the center of Denver. 154

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The resultant campus design was in the form of an urban park, open to neighborhood residents and city workers, so they would have access to Auraria's landscaped open spaces and recreational facilities. Cameron and McFadden's 1977 article, "New College Facilities, New In Town Vitality Gained via Denver's Almost Complete Auraria project," was one of the first comprehensive news stories on the development of the new Auraria Higher Education Center campus. They dismissed the cultural image of west Denver, describing it as only a "mid-class Denver residential neighborhood, with small Victorian gingerbread houses, the neighborhood saloon, church, brewery, and brothel" (p. 126). Their overview of the Auraria Project, as a detailed assessment of the planning and political process of recreating Auraria into a campus, included the conflicts during the land acquisitions in the urban-renewal process. The Auraria campus has been the subject of many articles regarding its architectural planning and design as an urban university. A Denver design firm, Civitas, published several commentaries on its involvement in the redevelopment of the property as a campus. They focused on how redesigning the central quad involved enhancing the campus landscape by eliminating the Lawrence and Larimer roadways from the campus itself (Civitas, 2001; Gillette, 1998). Civitas' third critique, "The Auraria Campus: An Example of American Landscape Design" (Helsper, 1990), was a more detailed site analysis of the Lawrence Street Mall and the history of the design 155

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of this American campus. Their other articles on the campus showcased the Auraria Library as a new Learning Resources Center (Goldstein, 1978; Learning, 1978). Other case studies about the Auraria campus have included firsthand accounts of the physical and organizational development of the AHEC campus; for example the operations of Auraria as a higher education organization (Leemon, 1987), its student housing proposal (Morrison 1979) and as an urban park (Palmer 1973). Palmer s ( 1973) case study described development of the AHEC campus from concept to reality. Carnahan's (1983) dissertation was a post-occupancy report on the decision making process in AHEC's early history as an organization. Taylor's (1984) exploratory research assessed the efficacy of the AHEC model of shared space and how the three institutions-University of Colorado at Denver, Metropolitan State College of Denver and Community College of Denver-independently operate on the AHEC campus These cited case studies focused on the Auraria campus to generalize their findings to a broader application across the nation Auraria Campus and Denver Streets Opened in 1977, the Auraria campus location continually has been transformed physically from downtown city blocks into a higher education campus that promotes a pedestrian relationship with Denver's city streets and sidewalks that surround and bisect the campus. Auraria was designed as an urban campus that would link to Denver city parkways as an accessible site for pedestrians, yet remain separated from major automobile traffic (Urban Design Committee, 1985). Speer 156

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Boulevard, constructed in 1909 as a landmark street to connect and highlight Denver's network of parks and civic spaces, is the most prominent city street that connects the campus with the city. Changes to the Auraria campus have emphasized the relationship between the two locations that parallel Cherry Creek. A major change in the material, social, and conceptual aspects of Auraria' s place-types occurred in 1988 when the Lawrence (Figures 4.13 and 4.14) and Larimer Street viaducts were torn down, and vehicular traffic on Lawrence and Larimer Streets was restricted from entering the campus at Speer Boulevard. These two Denver streets served as major vehicular corridors that had remained as part of the city street grid when the campus was built in 1977. The original Auraria campus design ofthe 1960s had included plans to create a pedestrian environment within the Auraria campus borders. The city streets and vehicular traffic were described as "the most significant physical problem on the campus" (BRW, 1986, p. 15). The Auraria Parkway was constructed west of the campus to re-route traffic around the campus and to create a "car-free zone" on the campus (BRW, 1986, p. 15). Removal of the city streets was a significant step in promoting the Auraria campus as a place apart from Denver's city-streets grid and promoting accessibility for pedestrians. Elimination of the vehicular traffic from the interior of the Auraria campus, and converting the streets into pedestrian walkways, was an important step in reinventing the image of the area as a higher education campus. 157

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Figure 4.13 Lawrence Street Pre 1988 Figure 4.14 Lawrence Street Post 1988 (Photographs courtesy AHEC Planning Department) The Lawrence Street Mall was conceived to improve the character of the Auraria campus as an urban park and academic center (Helsper, Johnson, Johnson, Rubba, & Steiner, 1990). The Auraria Higher Education Center Master Plan confirms AHEC's intent to have the campus pedestrian circulation sidewalks achieve "a collegiate atmosphere" (AHEC 2000, p.67). The Auraria Parkway Urban Design Report identifies the flagpole area as "Auraria Square" and the ''hub of the campus" (Sasaki Associates Inc. 1986 p. 52); and lists the Lawrence Street Mall and the Auraria Square as connecting points to Denver's Central Business District (CBD). The Lawrence Street Mall, including the flagpole area, is the major activity area of the Auraria campus. The physical areas contain a variety of spaces in terms of 158

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"scale, size and character," which creates a park-like setting for the campus (Sasaki Associates Inc., 1986). Another Auraria campus report identifies the intersection of Lawrence and Tenth Street Malls as the central campus location and major activity node at the "heart of pedestrian activity on campus" (AHEC Master Plan Review Pedestrian Report Space Syntax, 2008, p. 5). The flagpole area at the intersection of Tenth and Lawrence Streets on the campus is an archetypical place that symbolizes the Auraria Higher Education Center as an American higher education campus. Use of the imaginal words hub and heart in the planning document was a way to emphasize that the Lawrence and Tenth Street Plaza was a significant place-type that served as the central circulatory place on campus for social activity. Auraria Malls The Lawrence Street Mall Larimer Street, and Tenth Street Mall are the major pedestrian sidewalks on the Auraria campus (Figure 4.15). The Lawrence Street Mall and Larimer Street sidewalks today are the major campus pedestrian corridors that connect the Auraria campus with the Denver downtown business district in an east-west axis The Tenth Street Mall is the major axis for north-south travel through the Auraria campus The pedestrian malls were created to fulfill the original campus design in the urban redevelopment plan, with pedestrian corridors connecting to commercial areas in Denver (BRW, 1987). The flagpole area was created in 1988, along with the campus redesign of Lawrence and Larimer Streets as pedestrian corridors through the 159

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campus. The pedestrian malls were conceived to improve the character of the site as an urban park and academic center (Helsper et al. 1990). Figure 4.15 Auraria Campus Walkways (Space Syntax Pedestrian Report, p.5) 160 ..... oliiiiMr .. s-.ilryalirirah ainaradililracis lnlpaltltll---

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The Master Plan confirms AHEC's intent to design the campus sidewalks for pedestrian circulation in order to achieve "a collegiate atmosphere" (AHEC, 2000, p. 67). The conceptual aspects of Auraria and imaginal aspects of the flagpole area, as a material place, indicate that the intersection of Tenth and Lawrence Streets was conceived to symbolize an American iconic place-type-the higher education campus. Auraria Campus in Context The Auraria campus, like public forum jurisprudence, is continually evolving as the urban campus is impacted by activities occurring on and around it. For example, the AHEC administration and governing boards of each of the institutions agreed to cancel classes and close the Auraria campus from August 25 through August 29, 2008 during the Democratic National Convention (DNC) in Denver, over concerns for safety and to control access to the AHEC campus (Goodland, 2008). This campus suspension of operational activities included restrictions on the reservation of campus places for scheduled events and activities during the week. Coincidentally, the City of Denver installed a fence to create a free-speech zone during the DNC. This "Public Demonstration Zone" was located across the street from the Auraria campus in the Pepsi Center parking lot. The Colorado American Civil Liberties Union (ACLU) had sued the City of Denver and United States Secret Service on behalf of twelve national and local advocacy organizations, that the policy violated the First Amendment constitutional standards regarding public 161

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speech and demonstrations during the 2008 Democratic National Convention (ACLU v. City and County of Denver, 2008). Federal District Court Judge Marcia S. Krieger ruled on August 9, 2008, that the parade and speech restrictions were constitutional applications of time, place, and manner speech restrictions. The City of Denver and United States Secret Service prevailed in the federal lawsuit and instituted a demonstration permit application program, blocking access to the Auraria Parkway, and installing the "Public Demonstration Zone" across from the campus at the Pepsi Center (Figure 4.16). Figure 4.16 Pepsi Center and Auraria Campus Democratic National Convention August 27, 2008 (Photograph courtesy Matt Holohan) 162

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The Auraria campus also served as a location for parking and as a pedestrian entrance for individuals attending the Democratic National Convention. The campus was modified with fencing and concrete barricades to funnel pedestrians, who were attending the Convention, into restricted walkways designed for security check points and crowd control, including using the Larimer Street entrance as part of the route for a protest march on August 27, 2008 during the Convention (Figure 4.17). Figure 4.17 DNC on AHEC Campus August 27, 2008 (Photograph courtesy Matt Holohan) 163

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The concern for disruption of campus activities due to protestors at the Democratic National Convention (DNC) is an example of how the relationship ofthe Auraria campus to the surrounding Denver sidewalks and streets. This relationship is highly sensitive to the political and social issues that surround the campus. The Auraria campus is also sensitive to the economic and commercial growth of the Denver downtown area, as the campus has been subject to several changes in its overall design and mission as an education place. Auraria's Future As a Place-Type Future changes for the Auraria campus are described and illustrated in a new Auraria campus master plan to expand the physical design and appearance of the campus over the next twenty years (Goodland, 2007) The campus changes will include stronger physical links to the Denver metropolitan area; by creating services, buildings, and places designed to attract commercial activity to the campus. Key elements of the master plan include redesigning the campus for commercial connections to the Denver Business District. Redevelopment of the campus over the next twenty years includes: Creating neighborhoods for the three institutions, where each can create a unique identity Opening Larimer Street through the campus as a pedestrian and possible transit connection from the new Auraria west light-rail station to Downtown Denver Allowance for public/private development in the fifteen acres bounded by Auraria Parkway, Speer Boulevard, Larimer Street and the Tivoli, along 5th Street 164

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Providing more academic and office space, mixed with uses such as retail, offices, residential, and a hotel/conference facility. (AHEC, 2009a) The new Auraria campus master plan indicates continual changes in the Auraria landscape that are designed to enhance the campus's symbiotic relationship with Denver. The master plan emphasizes that the Auraria campus re-design will include new commercial places to link the campus to the Denver urban corridor. The new campus places are depicted in drawings that combine images of existing material places and monuments of imaginal place-types (Figure 4.18). Figure 4.18 Rendering of Lawrence Street Pedestrian Mall (http://www .ahec.edu/masterplan.htm) 165

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Chapter Summary Auraria' s history includes a series of conquests and conflicts that produced and defined the area as different place-types; and reflects the changes and development of the flagpole area, as well as other Auraria places, by different institutions over time. Auraria' s origin as a gold mining camp makes it an historic site, which is identified by architectural landmarks and campus markers. In its redevelopment as a higher education campus, Auraria has preserved the material, imaginal and conceptual aspects of Denver's history Recognition of Auraria as the origin of the Denver metropolitan area is an historic aspect of material place The Auraria campus monuments, symbols, and maps identify the significance of the area as a campus place. The markers, maps, and monuments are interpretive tools that provide was to examine place-types on the campus and provide individuals with information on the meaning of the place. Yet the flagpole area and the other Auraria campus areas have not been mapped or demarcated to identify the public forum categories as campus place-types. The Auraria campus location is also memorialized as an imaginal place as the site of a Hispanic community that was reinvented and recreated as a westside barrio and a place of cultural identity. The imaginal aspects of Auraria as a cultural place reflect the historical ethnic segregation in west Denver. This research on the campus as an imaginal place has focused on Auraria's cultural and social aspects as well as the placemaking process of urban planning. 166

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Through its transitions, the west Denver location has become a new conceptual place as an "other" type of place. Created as part of the redevelopment of the Denver central downtown business district, the Auraria Higher Education Center was a new type of"place," the higher education campus. The re-emergence of Auraria as a new type of place also provided interpretive tools for conducting a place assessment of Auraria as a campus place-type. Studying the Auraria campus has shown how, over time, the flagpole area has been produced as a material, imaginal, and conceptual place. The flagpole area is a space, which overtime has developed into a place that has been occupied, named, invented, modified, and represented as different types of public places that have been transformed into an urban campus. The new Auraria master place reflects in concept and visual representations that the flagpole area will continue transition as a material, imaginal and conceptual place type in the near future This next transformation of the flagpole area as a campus place type raises questions as to the implication of Judge Figa's interpretation of the place as designated public forum. The place-typing assessment in this chapter provides a contextual insight into the contemporary Auraria campus as a multidimensional place. I use the subsequent chapters in this dissertation to expand on the place-typing process to address the development of the flagpole area as a campus and constitutional place-type. I conduct a place-typing assessment of the three definitions of the word campus in Chapter 5, to identify the different place-types that are associated the campus as a multidimensional 167

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place. In Chapter 6, I conduct a place-typing assessment of the development of the Public Forum Doctrine to examine the historic development of the Public Forum Doctrine as a legal precedent. In Chapter 7, I will analyze the content of the Mason v Wolf(2005) judicial opinion as a place typing process to distinguish the flagpole area's transformation into a designated public forum, a constitutional place type I analyze the content of the judicial opinions in selected cases in Chapter 8 to compare the results to Judge Figa's opinion in Mason v. Wolf(2005). In Chapter 9, I use the campus place-types analysis from the previous chapters to create the Campus Place Public Forum Typology. I use the information to photograph, classify, inventory, and map Auraria's campus place-types as public fora. The photographs and aerial of the Auraria campus provides the reader with a visually representation of the public forum categories that are matched to campus place-types to reflect a constitutional landscape. The use of photographs and diagrams is an objective way to characterize, memorialize, and communicate the architectural design of the Auraria neighborhoods and visual representations of the campus, which provides information on the campus as a legal place-type. 168

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CHAPTER 5 THE CAMPUS AS A PLACE TYPE Introduction This chapter analyzes campus as a physical location, social entity, and organizational place-type. The Merriam-Webster (2004) dictionary defines a campus as: (a) grounds and buildings of a university, college, or school; (b) a university, college, or school viewed as an academic, social, or spiritual entity; and (c) grounds that resemble a campus, hospital campus or landscaped corporate campus. I contend that exploring the multiple definitions of campus as a type of physical location, entity, and organization, provides insight into the campus as a multidimensional place-type. To examine the context of how campus place-types are created, I used Franck and Schneekloth's (1994a) place-type model to conduct a place-typing assessment of these three definitions of campus, in order to provide context to the campus as a distinctive type of place. I also examined how these multiple definitions of the campus interconnect, represent, and facilitate a broad array of democratic ideals in the United States, specifically the rights guaranteed under the First Amendment of the U.S. Constitution. I used the Campus Place-Types Model as a framework to analyze how campus is defined and experienced as a material, imaginal, and conceptual place; 169

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and to organize the place-typing assessment of the multiple definitions of campus as a type of place. Table 5.1 Campus PlaceTypes : l Campus PlaceTypes Material 1! Imaginal _[__ Conceptual I _,II Campus as a physical I I l l Grounds that I Campus space, grounds and c? egde, or sc oo resemble a campus, Dictionary 1 . 1 viewe as an hospital campus, or Defini.ti'on bmldmgs of a school, Ill d . I I I d d . 11 [ ernie, socia or an scape l umversity, or co ege . 1 s mtua entity _j corporate campus The first section below addresses the material aspects of a campus as a physical place. The imaginal aspects of a campus as a social entity comprise the second part of the campus-place analysis. The third part ofthe campus-place analysis is the conceptual aspects of the campus as an organizational place. The Campus as a Material PlaceType The definition of campus as "the grounds and buildings of a university, college, or school" (Merriam-Webster, 2004) describes a material place-type. According to Franck and Schneekloth (1994) material places are created to shape activities and relationships and to represent the values in society. In "The Pride of Place," Robert A.M. Stem (1986) described American campuses as "among the greatest dream places of our civilization and a distinctively American invention" (p. 41 ). He wrote that higher education campuses are "places apart, places informed by 170

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the past but continuously renewed by the realities, the ideals and dreams of the present" (p.83 ). Strange and Banning (200 1) declared a similar assertion that the design and physical features of a campus are created to communicate nonverbal messages of the institution's values and to influence behavior on the campus. The campus as a place-type is interpreted by multidimensional symbolic values and meanings that are linked to campus material places. Higher education campuses are material places that symbolize a distinctive place in America. The university buildings, grounds, and outdoor places are essential elements that are designed to promote the utopian ideals of higher education (Boyer, 1987; Campos, 2002). The place-typing assessments of campus place as material place represent the mission of a campus and how it functions in society. The concept of a campus as an -ivory tower, surrounded by open space, promotes a powerful symbol of higher academic life (Stanton, 2005). My examination of campus place, therefore, necessitates examining how a campus's physical features are created to represent a location as a specific type of educational place. Literature on the judicial interpretations of the higher education campus as a type of place includes an examination of how the physical design of a campus differs from other types of public property. In Campus: an American Planning Tradition, Paul Venable Turner (1984) stated that ''the word campus, more than any other term, sums up the unique physical character of the American College and University" (Turner, 1984, p. 4). He identified the campus as a physical, social, and 171

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organizational entity that symbolizes evolving educational and social ideals. He stated that examining the design of the material aspect of a campus place provides an opportunity to use place-typing as an interpretive tool to examine how campus place is viewed in a public forum analysis. Campus Design and Representation of Democracy The design and production of campus place are important considerations in the material aspects and distinction of the higher education campus as a public place. Lefebvre ( 1991) used the term "representation of space" to describe architectural spaces conceived by planners, designers, and scientific professionals who are tied to the production of space. Examination of the campus as a type of place requires understanding how a higher education campus as a material place was conceived to symbolize a democratic place A prominent American campus design used to symbolize democratic values is the "Ox bridge" model, named and influenced by the quadrangle formation of the British academic institutions of Oxford and Cambridge (Thelin, 2003). Social influences shaped the English university grounds, which had been designed in a quadrangle to protect inhabitants from angry villagers and to control student activities (Turner, 1984, p. 10). Thomas Jefferson expanded on this model by designing the University of Virginia (chartered in 1819) campus as a symmetrical, organized, academic village that symbolized the democratic and rational pursuit of knowledge (Gelemter, 1999). He conceived the campus design as the model for higher education 172

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campuses for the new nation (Stern, 1986). The University of Virginia model campus is an iconic symbol of higher education and democracy The university's lawn and quadrangle are important outdoor features that are emulated by campus designers to distinguish America's higher education campuses from other places in the United States. Campus Design Research and Theories The civic nature of a college campus that represents democratic values in the grounds' landscape and design varies by the designer's conception of democracy. Frederick Law Olmsted's campus designs of land grant university grounds, in the second half of the nineteenth century, were influenced by his pluralistic democratic ideals that higher education is a principle institution in the creation of a civic society (Chapman, 2006; Starr, 1987). In A Few Things to Be Thought of Before Proceeding to Plan Buildings for the National Agricultural College, Olmstead ( 1866) wrote that the quadrangle is generally inappropriate for the grounds of a campus (Schuyler, 1996). Rather than create a formal set of campus design rules (Chapman, 2006; Schuyler, 1996), he emphasized that campuses should function as an extension of the community; that they should accentuate the natural surroundings, be built to a domestic rather than an institutional scale and promote the civilizing mission of higher education (Schuyler, 1996, pp. 3-8). Olmstead's campus models followed the contours ofthe land in irregular formations, designed as park-like open landscapes, and were dominant 173

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influences on early land-grant campus designs (Chase, 1992; Schuyler, 1996; Turner, 1984). In contrast to Olmstead's campus design, Thomas Jefferson's symmetrical, organized design of the University ofVirginia as an "Academical Village" was centered on "The Lawn" as a formal space. The Lawn symbolized Jefferson's top down approach of representative democracy. He believed the quadrangle spaces on a campus "form a unity" between the open space and the buildings, making a statement on the importance of order on the campus (Sturgeon, 2009, p. 33). In contrast, Olmsted used an informal design to convey a sense of place and representing his bottom-up, pluralistic view of a "direct" democracy. The place-typing assessment of the different types of campuses, by their material features and forms, is an interpretive approach to determining public fora. Yet, both the formal symmetrical design of a central lawn's open space "quad" and the informal, utilitarian naturally forming lawn that conveys a sense of place are popular and enduring campus images of public expression. The place-typing assessment of campus place-types, ultimately, is an examination of the range and types of campus design. The design pattern of campus place often has been the subject of research to determine the most replicated types of campus designs produced across the United States. Charles Klauder and Herbert C. Wise (1929) are credited with writing the first book on college architecture (Halsband, 2005). Their College Architecture in America 174

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and Its Part in the Development of the Campus provides a survey of campus architecture and a prescriptive guide to campus planning (Klauder & Wise, 1929). They noted the uniqueness of each higher-education institution based on its social characteristics and environmental conditions. They advised that the architectural style and layout should fit a campus's natural physical setting and not be copied from another campus or setting. The assertion that each campus should adopt a specific design model suited to its setting challenged the creation of a uniform archetype or typology of campus place-types. Actually, the need to identify common characteristics in campus place types is ideally suited as an interpretive tool in the place-type assessment. The design of a campus as a place, apart from other types of material places, produces a level of uniformity in the production of campus quads, lawns, plazas, and other outdoor places, as material artifacts created to symbolize the material aspects of the campus. The typing assessment of material place as interpretive text, as discussed in Chapter 2 provides a research method to examine the influence and production of a campus's material character, which is arranged in a way to convey symbolic meanings of the campus. Campus Placemaking and Placemarkers A prolific writer on the material aspects of campus place, Richard Dober's campus architecture and planning books identify key architectural features of a model campus. In his prescriptive guidebooks, Campus Architecture (1996a), Campus 175

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Planning (1996b) Campus Landscape (2000), and Campus Design (2003), he used the termplacemaking to describe the positioning and arrangement of a campus's land uses as the overall campus design. He wrote that the placemaking method arranges pedestrian and vehicular routes as well as the placement of the "location of buildings and functional open space, such as playfields and parking lots, the definition of edges, and the interface between campus and environs (2003, p.4). He described the campus as a physical component that symbolizes institutional life; that campuses must be designed to anticipate and accommodate new roles, while maintaining a traditional and conventional position in society Dober (2003) expanded on the placemaking process by what he termed "placemarking" to describe the "definition, conceptualization, and orchestration of certain campus physical attributes, all of which give a campus a visual uniqueness appropriately its own" (p.5). Placemarkers include campus buildings and landscapes that create a visual campus style contributing to the sense of place. He explained that landscape forms and features are physical artifacts that shape a campus and define its meaning as a place-type. His place-typing and placemarking concepts focused more on the material aspects of place, compared to the imaginal aspects of place-typing, as discussed in Chapter 2 The distinction is even addressed in the spelling; Dober used one word for placemaking to identify it as an action intended to create material place on a campus and serve as cultural currency. 176

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The material aspects of place-typing the Auraria campus define it as several walkways and roadways associated with the campus. In the same areas are placemarking elements, such as the flagpole that identifies a significant area (place type). Due to high visibility and general physical features, the same areas are also subject to the widest divergence of interpretations as open outdoor areas of the campus. Campus Outdoor Places In this section, I discuss the campus open areas, with the understanding that the word space is commonly used to identify outdoor locations on higher education campuses. For example, in "Open Space Preservation,'' Janice Griffith ( 1994) prescribed a set of land-control measures to preserve campus open space. She advocated that open spaces are unifying elements in the physical character of a campus. She confirmed that many campuses contain open spaces that are designed to evoke a strong emotional connection to link one's social identity with the institution; that campus open spaces are similar to urban open spaces and public spaces, as discussed in Chapter 2 She explained the use of open space to organize campus buildings into a quadrangle, as influenced by the Medieval English college design. She added that many campus designs of the early 1900s expanded on the quadrangle design, using open space to create primary and secondary axial campus designs that replicated the City Beautiful Movement and Movement Beaux Arts urban-planning designs of higher education campuses. She declared that these campuses were 177

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designed to have long quadrangles highlighted by signature buildings and surrounded by a variety of open space types; including lawns courtyards, and sidewalk malls to create a unifying scheme and a "unity out of the disparate functional needs served by a campus" (p. 646) Griffith ( 1994) also noted that the steady increase in college and university student enrollments after World War II had generated an increase in the construction of campus facilities, at the cost of a loss of campus open spaces. She applauded contemporary campus design methods that had removed surface parking lots and roadways and preserved green spaces, signifying a return to the pedestrian-oriented campus and policy intents to expand places for social interaction. The shapes and sizes of campus open spaces are important in place assessment to determine the boundaries that define the campus place-types and resultant social territories. Barbara Hadley Stanton (2005) conducted a case study on the design of three campuses, to measure the percentage of campus buildings and grounds coverage compared to the overall acreage She found that the most favorable perception of the campuses was their open space with buildings; this favorable perception began to diminish however where ground coverage and buildings had reduced the open space by thirty percent. She acknowledged that the grounds-coverage measurement was a superficial standard and that other environmental personal, and social factors also influenced the perception of campus spaces; that the location linkage, and 178

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dimensions of campus open spaces are also important elements in the perception of a campus as a unified whole A campus as a material place is a physical form that is created to represent and influence the imaginal and conceptual constructions of place. The material aspects of a campus are physical artifacts that define an array of physical design features that symbolize a specific type of place. A campus is similar to other urban places that include parks and plazas as public places, which evoke emotional links to individual identity. However, both the management of a campus, and its policies that govern the use of the campus's outdoor places, shape the image of the campus as a material place apart. The Imaginal Campus As a Social Place The campus is also defined as "a university, college, or school viewed as an academic, social, or spiritual entity" (Merriam-Webster, 2004, p. 178). This definition corresponds to Franck and Schneekloth' s ( 1994) notion of the imaginal aspect of idealized place-types or archetypes that are experienced through imbued meanings and associations. The physical character of a campus is a significant factor in its visual imaging and interpretation as an academic, social, or spiritual entity as a representational place for students. Lefebvre ( 1991) described representational space as a spatial dimension that is "directly lived through its associated images and symbols by the inhabitants and users of the space" (p. 39). A higher education 179

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campus is an imaginal place that defines the spatial identity of its students, influences their individual development, and reinforces emotional attachment to the institution. Collegiate Way The "collegiate way" is the student-development model initiated by colonial colleges for educating young male students at residential colleges. This model was based on the English ideal ofundergraduate education as a civilizing experience that would ensure a progression of responsible leaders for both church and state. Students were sent to attend college in rural communities, to provide for their social, academic, and spiritual well-being (Rudolph & Thelin, 1990). Higher-education historian Frederick Rudolph ( 1990) described the collegiate way as the oldest tradition of the American college: The collegiate way is the notion that a curriculum, a library, a faculty, and students are not enough to make a college. It is the adherence to the residential scheme of things. It is respectful of quiet rural settings, dependent on dormitories, committed to dining halls, permeated by paternalism. It is what every American college has or consciously rejected or lost or sought to recapture. (p. 87) Rudolph contended that the collegiate way required rural settings for "country colleges," to avoid a need to create cities as material places to provide housing and to support the operations of the new colleges. He added that once cities, such as New York and Philadelphia, were built, the collegiate way would not have to maintain the college-placemaking pattern. He wrote, "But by then what had been a necessity had become a tradition, and from then on the founders of American colleges either adhered to the tradition or clumsily sought a new rationale" (p. 87). The "collegiate 180

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way" student-development model established that a campus as a physical location, as well as an emotional entity, was necessary to facilitate both the development and control of students. The Campus in Perceptual Context Education of the total student was promoted by emphasizing the students' emotional attachment to the campus as an imaginal place of social development and shared memories, associated with the campus as a material place. The concept of a campus as an entity, where members share a common organization-wide identity, is a place of individual self-enhancement through emotionally bonding one's identity with the organization (Ashforth, Harrison, & Corley, 2008). In his research on academic organizations, Burton Clark (1970; 1972) defined this bonding process as "the organizational saga." He declared that a university's space and physical features are its strongest symbols for communicating the organization's heritage and mission. The perception of campus public space, through a combination of memory, experience and personal landmarks, functionally and symbolically influences student impressions about the higher education institution (Boyer, 1987; Pascarella, 1985; Strange & Banning 2001; Thelin & Yankovich, 1987). Ernest L. Boyer's ( 1987) research on undergraduate experiences at twenty-nine different colleges identified that "the buildings, the trees, the walkways, [and] the well kept lawns" are the most influential factors in prospective students' selection of a college or university (p. 17). 181

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The use and meaning of a campus place are aspects that evoke feelings and memories; and these aspects of place-typing are influenced by emotional attachment to the higher education campus as the alma mater. The alma mater concept is defined as the physical location of student meaning, perceived within the campus community as a symbolic place (Horowitz, 1984). The perception of a campus as a utopian democratic space is also based on the notion that public space is an essential physical location that is needed on a higher education campus. Further, the campus is symbolic of the quad as a public space, an idealized location of open social interaction. The perception of a campus as public space is based on social interpretations of the campus as an imaginal place that specifically was erected to foster the free and open exchange of ideas (Christ, 2004; Gumprecht, 2007). The Conceptual Campus as an Organizational Place The definition ofthe word campus has expanded beyond describing an educational institution. The third definition of campus is grounds that resemble a campus, hospital campus, or landscaped corporate campus (Merriam-Webster, 2004). The contemporary definition of campus is the grounds of corporate office, medical, and government facilities (Hampton, 2002; Haresign, 1999; Leonard, 1999; Webb, 2001 ). Yet those locations do not have the same governance structure because the campus is managed under idealized concepts of shared governance, academic freedom, collegiality and the collegiate way. Frank and Schneekloth (1994b) wrote 182

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that organizations borrow the positive aspects of an existing place-type in order to create a new image to associate with a new place-type. Conceptually higher education campuses symbolize a specific type of governance system of hierarchical organization that serves as the institutional identity as well as where they are located. These ideals of campus governance are symbolized as campus open places to express these values in a campus environment, as discussed in the previous section "The Material Campus as Physical Place." Non-educational organizations' use of the word campus and grounds is similar to higher education campuses; except the conceptual aspects of the higher education campus as a place-type is distinguished by its specific organizational mission, operating structure, and social practices as an educational institution. Understanding the hierarchy of spatial rights provides insight into campus management and use of space. Geographer Cole Harris ( 1991) wrote that studying physical space as a geographical concept must embrace the philosophical concepts and social theory of spatial relationships and power. He asserted that power is not conceived apart from its geographical context. Burton Clark (1972) stated that this power requires and shapes space and that; in return, the space shapes the social power. Higher education campuses represent the governance system of a specific type of hierarchical organization. The higher-education management philosophy is defined by the concept of an organizationally normative environment of collegiality and shared governance. The study of higher education organizations and campuses, as 183

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conceptual place-types, is an examination of a different type of place: the multidimensional campus environment. Campus Environment In Campus Environment Model, Charles Strange and James Banning (200 1) described that the dynamic relationship between the student body and the campus, as a multidimensional place of physical, social and organizational interactions, is similar to place theories, as discussed in Chapter 2. They described campus place as a location that is shaped by the dynamic relationship between the student body and the campus environment. As part of this complex balance, they identified and defined four campus environment components, which guide the functions and practices of higher education institutions: Physicalnatural and synthetic features and designs, such as landscaping, terrain, placement ofbuildings, and internal lighting Human Aggregate -collective characteristics of participants, such as arrangements of people and their relation to common traits Organizational-structures that serve specific goals, such as decision-making, rules, reward, and complexity Constructed-collective perceptions of people in a setting, such as attributions of campus press, climate, and culture. (Strange & Banning, 2001) Strange and Banning's (2001) campus-environment model comprehensively examined how different campus components are "shaped to achieve educational 184

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purposes" (p. 7). This campus-environment theory is a typing model that applies directly to the higher education campus as a multidimensional place-type. Higher education campuses are organizational places, with an external classification of the academic status of the institution and internal classification of the campus space. Shared Governance As Campus Organizational Type In the organizational decision making process, higher education institutions operate under a system of shared governance and collegiality, rather than conflict and coercion. The organizational mission and structures which serve specific goals of a higher education campus, and the constructed meaning of the campus are the third and fourth components of Strange and Banning's (200 1) campus-environment model. As John Dilulio (1998) stated, the management of public organizations varies by the leadership, structu-re, and coordination of organizational governance. The higher education organizational structure defines both the expressed and implied purposes of a campus as a specific type of place. In his higher-education organizational theory, Robert Birnbaum (1988) described higher education institutions as unique organizations that function as hierarchical organizations, social systems, and symbolic inventions He added that higher education institutions are in large measure "symbolic inventions that exist because we believe in them" (p. 1 ). He classified higher education organizations as normative organizations that rely on both referent and expert power to manage organizational goals. He contrasted the normative organizations of a campus to prisons, as example of coercive organizations 185

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that "rely predominantly on punishments and threats on the threats of coercive power," and utilitarian organizations like business firms that "emphasize reward power and legitimate power to control participants" (Birnbaum, 1988, p. 13 ). Stating that higher education institutions are symbolic inventions makes them a place-type that is sorted into different types of operational and functional categories. Campus Academic Classification Types My research on campus place-type as public fora has examined campus classifications of academic institutions in order to determine how to compare campus place-types. Classifying academic institutions ranges from the formal Carnegie academic degree classification to basing classification on campus location and type. The Carnegie Commission classifies academic institutions by academic degrees and research activity, including two-year community colleges and junior colleges, based on the granting of associate degrees. Other Carnegie classifications include special categories of Tribal Colleges and Hispanic-Serving Institutions (Title III of the Higher Education Act, 1965). The Carnegie classifications also have sub-categories based on the number of full-time students (FTE) and full-time students living on campus. They also classify higher education institutions as land-grant institutions, created by the Morrill Land-Grant Acts of 1862 and 1890, including the Historical Black Colleges and Universities (HBCU). Other types of campus classifications more informally describe academic related operations, such as residential campus with student housing, commuter campus, and location as urban campus. 186

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Campus Space Management Categories The campus Postsecondary Educational Facilities Inventory and Classification Manual (FICM) is the "space use and characteristics" indicators for the management of campus space (Albright, 1996; Casey, 1996; Fink, 1996; Hier & Biddison, 1996) The FICM guideline applies only to management of campus facilities and interior spaces. Space is defined in the FICM as "an area bounded by walls and/or an imaginary boundary line" (IES, 2006, p. 6). In this dissertation, campus places judicially interpreted are primarily outdoors areas that have not been identified or defined in the FICM manual as space. The manual states that campuses should "inventory other plant assets, through their own codification scheme" (FICM, 2006, p. 15). The manual also identifies "Other Physical Place Assets" (p.l5) that are "elements that support campus activities" (p.124 ). The FICM's campus space management guidelines and codes assign campus space categories by form, use, and meaning to ensure an efficient use of the campus space. Space audits are a campus space inventory technique to catalogue space through utilization reports and surveys, according to acknowledged benchmarks and guidelines. These campus space management guidelines correspond to Franck's (1994) place-typing model that classifies physical locations by form, use, and meaning. In Chapter 9, I use this space-management model to distinguish the campus place-type classifications, from the other court cases, to create a campus place-type inventory. 187

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Architectural Place-Types Specific campus place-types are identified and illustrated in architect Bill Deno's (1994) book, Body and Soul, which contains a section on architectural terms with diagrams as example of architectural features on college campuses, including the University of Colorado at Boulder. Below is a diagram ofthe campus outdoor open space, as a visual representation of the features (Figure 5.1). Figure 5.1 Campus Open Space (Body and Soul, 1994, p 42) 188 ,____..,0 0 0 4REEN 0 0 0000

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Deno (1994) defined the different campus architectural features by describing how the buildings and features of a campus shape and define the following types of outdoor places: Quadrangle -an outdoor area surrounded on all sides by buildings Square -a large open area bounded by buildings, streets or the area at the intersection of several streets Mall-a shaded walk for promenade by pedestrians, sometimes jointly used by bicycles, public transit, and/or service vehicle Green, or Field-a large, open, grassy area used or formal or informal play Courtyard-a small outdoor space partly or entirely enclosed by buildings or other means of enclosures Tenacea level space raised above the surrounding area, usually flanked by a building Piazza, or Plaza-a public open, people space. All spaces in the diagram above are defined by and shaped on four sides by the surrounding buildings and landscape features. My public forum analysis in this chapter required an assessment of the multidimensional aspects of the place beyond the physical form of the location. I used the one-dimensional architectural forms and definitions in the diagram above to identify the campus place-types in my Campus Place Public Forum Typology. 189

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Campus Place-Type Summary The campus is a distinctive physical form that maintains continuity while evolving constantly, based on changing architectural, educational, and social principles. Similarly the Public Forum Doctrine also continues to evolve as a legal analytical framework that examines constitutional interpretations of individual rights that involve speech, space, and sovereignty on public property (Neveril, 1996). The interpretation of the flagpole area at Auraria campus as a public forum is a case study on how judicial interpretations produce legal places. The authority exercised in the physical design of university campuses, specifically the purpose of outdoor plazas, is designed to represent the values of the educational institution as the heart of the campus. Historically, campuses have been built to promote the ideals of a university and to serve as a place of social interaction, to promote collegiality and the learning process. Campus spaces range from planned and designed ceremonial spaces controlled by a governing body to less restricted utilitarian spaces. Campus institutions promote open forms of place and building types as institutional symbols, compared to prisons, military, and other types of institutions that restrict access to the grounds based on the mission and operations of the organization. Chapter 6 describes and discusses the Public Forum Doctrine as the legal expansion of First Amendment rights in public places. 190

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CHAPTER 6 THE PUBLIC FORUM DOCTRINE Introduction This chapter examines the historic development ofthe Public Forum Doctrine to explain the legal expansion of First Amendment rights in public places. Legal scholar Edward Levi ( 1961) explained that tracing the history of law is an important process in identifying how common ideas in society eventually are used in legal decisions and eventually become controlling case law. In this chapter, I review the case law on the development of the Public Forum Doctrine as an established legal precedent in U .S. constitutional law. I also analyze landmark Supreme Court opinions that facilitated the evolution ofthe legal concept of public forum into a legal doctrine of First Amendment rights and restrictions over public speech in public places. To answer the research questions on how public forum applies to Auraria and other higher education campuses in different federal circuits across the United States I examined how the theories of place-type and place-typing as social constructions of multidimensional place correspond to the legal production of place as a public forum I used Levi's ( 1961) legal precedent model to identify the different phases in the evolution of public forum case law into Public Forum Doctrine It is important to 191

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remember that the material, imaginal, and conceptual the aspects of place-typing do not exists separately or independently. Franck and Schneekloth ( 1994b) reiterate that the three kinds of place-typing reflect the differences in the orientations and focus of the activity we are pursuing, and reveal which aspects are receiving our attention and consideration" (p. 16). I incorporated the place typing assessment model to examine the changes in the orientation and focus of the judicial interpretation of place in the evolution of the public forum case law. The Supreme Court cases provide a legal and theoretical history the Court's legal construction of place in constitutional law that corresponds to the social construction of place in Franck and Schneekloth's (1994b) theoretical place-typing model. The Developmental Phases of the Public Forum Edward Levi ( 1961) identified three phases in the developmental process of a legal precedent. The first phase is when a legal thought is developed as a concept, by comparing decisions in similar court cases. He explained that during the first phase, the courts fumble for a phrase to name the emerging legal concept, because the idea has not been widely recognized in the legal community. During the second phase, the legal concept becomes a fixed legal authority based on the widespread use of the concept in legal decisions and case law. The legal concept is still an emerging legal theory, however, and not yet adaptable to address complex legal issues. A judicial decision only addresses the facts of a case to determine whether the case is inside or outside the legal concept (Levi, 1961 ). The third phase begins with breaking down the 192

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legal concept which "has moved so far ahead as to make it clear that the suggestive influence ofthe word is no longer desirable" (Levi 1961, p. 14). In the next section, I use Levi's legal precedent model as a typing method to identify the evolution of public forum case law and judicial opinions that form the basis of specific legal principles I use the Multidimensional PlaceT yping Framework (Figure 6.1) to describe how the Public Forum Doctrine has evolved from a simple approach of analyzing material locations to judicial interpretations of multidimensional place-types. Table 6.1 Public Forum Doctrine Evolution ofthe Public Forum Doctrine Place-Type I! Material --, I Conceptual Imaginal I l i The first phase is The second phase is I[The third phase r omparisons of I the legal concept begins with the I J decisions in similar becomes a fixed breakdown of the Levi i l court cases legal authority legal concept ![Freedom of Speech IUse ofthe-Term [rublic Public Forum J ICases J:Public Forum First Phase of the Public Forum Doctrine The first phase of the legal concept of the Public Forum Doctrine began in 1987 when the U.S. Supreme Court addressed the question of constitutional speech protection on public property. In Davis v. Massachusetts (1897) a minister appealed to the United States Supreme Court after his conviction for preaching in the Boston Commons without a permit was upheld by the Supreme Court of Massachusetts. The minister's assertion that the Boston Commons was the people's property was rejected 193

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by the Massachusetts Supreme Court in their affirmation of a lower court's decision to uphold the minister's conviction. The Supreme Court reiterated the Massachusetts court's assertion that citizens do not have a right to use public property in defiance of the Constitution and laws of the state, because: As representative of the public, it may and does exercise control over the use which the public may make of such places, and it may and does delegate more of less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary rights interfere, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes. (Davis v. Massachusetts, 1897, p. 47). The Davis (1987) standard was the binding authority on the government's power to regulate speech in public property until the U.S. Supreme Court's 1939 Hague v. C. I. 0 opinion, in which the Court ruled that a municipal ordinance prohibiting leafleting by a labor union in the streets and other public places was an unconstitutional abridgment of the union's freedom of speech. Justice Roberts wrote: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out ofmind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of 194

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regulation, be abridged or denied. (Hague v. C.I.O.. 1939, pp 515516) Hague (1939) reversed the U.S. Supreme Court s earlier opinion in Davis (1897) and set the stage for creating the Public Forum Doctrine Justice Roberts' declaration of constitutional speech protections i n streets and parks as public places is cited as the origin ofthe Public Forum Doctrine (Crocker, 2007; Humenik 2001; Kellum, 2005). Justice Roberts interpretation of material places, such as parks and streets, was a judicial process of place-typing that identified specific public locations where speech rights were protected by the U.S. Constitution. His dictum linking the material aspects of place to the i maginal aspects of constitutional freedom of speech rights is quoted in contemporary public forum opinions; dicta, while not binding as case law, may serve as persuasive arguments in future cases with similar facts Justice Robert's dictum forecast the U.S. Supreme Court s decision making process in future cases involving speech rights on public property Public Forum and Civil Liberti e s The first phase of the development of the public forum as a legal precedent continued during the thirty years following the Hague ( 1939) case. Then the U.S. Supreme Court began to interpret the material aspects of place to determine if a location provided constitutional protections of individual civil liberties when people were seeking the use of public property for expressive purposes. In the late 1930s through the 1950s, the U.S. Supreme Court challenged the actions of state and city government officials to discriminately enforce bans against denying access to public 195

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parks for religious gatherings (Fowler v Rhode Island, 1953; Niemotko v. Maryland, 1951 ); and against leafleting on city streets (Cantwell v. Connecticut, 1940; Lovell v. City of Griffin, 1938; Schneider v. State 1939; Talley v. California, 1960; Valentine v. Chrestensen, 1942) Many of these religious and leafleting cases cited involved denying Jehovah's Witnesses the use of public places to exercise their First Amendment rights of free speech. The Court was establishing, through case law, the constitutional recognition of the multidimensional aspect of public property. The U.S. Supreme Court did affirm a conviction of five Jehovah's Witnesses, however, for leading sixty-three members of the "same persuasion" in a parade without a permit (Cox v. New Hampshire, 1941, pp. 571-572). In Cox, the Court emphasized that "civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses ofumestrained abuses" ( p.574). The Court ruled that the requirement for obtaining a parade permit was a valid exercise of government authority that "did not deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places" ( p 574). The Court's Cox decision reinforced the concept that the government can restrict use of public places if the laws and application are conducted in a non-discriminatory manner. The Court's civil liberties decisions established constitutional case law that expanding the locations where First Amendment rights are protected based on the 196

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democratic principles of equal protection and access to public property. More importantly, the Court engaged in a place-typing assessment of the multidimensional aspects of public property by distinguishing that the power to exclude individual from public property were not analogous to private property. The Court's decisions were judicial proclamations that once government officials grant access to public property to certain individuals to engage in the democratic process of public expression they created a publically accessible public place for individuals expression. More specifically the judicial interpretations of public property established the judicial recognition of the existence of a public place within public property, where individual protections of public speech are protected by the U.S. Constitution. Public Forum and Civil Rights Government restriction over access to public places was beginning to face a new constitutional test, as government stewardship of public property was being challenged by U.S. Supreme Court decisions in the 1960s. New cases were addressing the South's cultural justification for restricting African-Americans access to public places in order to maintain the segregated social structure. The civil liberties cases of the 1940s and 1950s identified places where the public could exercise their constitutional rights of public speech and expression by individuals with generally unrestricted access to public places. The 1960s civil rights cases expanded on the 1950s civil liberties cases by establishing that African-Americans were members of the public that had a right to access public property. 197

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The civil rights cases addressed the denial of individual rights in the civil liberties cases over the freedoms of speech, assemble, and access to petition the government for a redress of grievances that are guaranteed in the First Amendment of the United States Constitution. However the civil right cases were based on two constitutional challenges of governmental discriminatory actions. The first constitutional challenge was over the segregation policies and practices in the United States of America as a fundamental act of unconstitutional discrimination. The second constitutional challenge was based on the unequal treatment for African Americans to engage in public speech, assembly, and demonstrations to petition the government about the discrimination that existed in the first place. These U.S. Supreme Court decisions reduced unconstitutional discriminatory restrictions on access to public places by reversing state court convictions for African-Americans charged with breaching the peace by sitting at a segregated lunch counter on private property (Garner v. Louisiana, 1961) and also for remaining in a segregated public library (Taylor v. Louisiana, 1962). The Supreme Court also overturned breach of the peace convictions in cases involving civil rights marches and protests on public property by mass gatherings of African-Americans (Cox v. Louisiana, 1965; Edwards v. South Carolina, 1963; Fields v. South Carolina, 1963; Henry v. City of Rock Hill, 1964). The Supreme Court continued to apply First Amendment rights of speech, assembly, and the petition of grievances in disputes over expression in public places, 198

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by addressing the discriminatory actions of government officials who restrict access of African-Americans to public places. The Supreme Court's First Amendment decisions in the 1960s, along with the Civil Rights Acts of 1964 (Katzenbach v. McClung, 1964; Heart of Atlanta Motel v. United States, 1964), constitutionally expanded the legal definition of public to include African-Americans. The concept of who is a member of the public became a significant characteristic in the Court's interpretation of the multidimensional aspects of public property. The Court's actions loosened government restrictions on the management of public places, in court cases expanding the definition of public place, public expression, and classes of people legally defined as members of the public. Through the 1960s, the Supreme Court continued this place assessment of public property, distinguishing types of public property by purpose of the institution and the needs of the public officials to maintain order and control over the property. Later in the decade, the Court upheld criminal charges of trespass against a group of African-American college students who were arrested for failing to disperse from the driveway ofTallahassee'sjailhouse grounds during a march and protest ofracial segregation in the community (Adderley v. Florida, 1966). The Adderly opinion distinguished the jail from other types of public property, noting that the jail's use for security purposes allowed state officials to control access to the jailhouse grounds as a lawful, non-discriminatory government action. The Adderly ( 1966) case is similar to the Cox ( 1941) case twentyfive years prior when the Court had allowed government 199

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restrictions on the use of a sidewalk as a public place as long as the restrictions were applied in a non-discriminatory fashion. Principle of Proportionality Included in this section is the only lower federal court case of Supreme Court significance, in order to identify how Federal District Judge Frank M. Johnson, for the Middle District of Alabama, addressed the significance of public expression when interpreting the expansion of public place. In Williams v. Wallace (1965), Judge Johnson granted an injunction against the State of Alabama, represented by Governor George Wallace, for attempting to prevent a civil rights march from Selma, Alabama to Montgomery, Alabama. This injunction was granted after several violent attacks had been conducted by Alabama officials to prevent peaceful demonstrations in Perry County, Alabama. The most recent attack had occurred when individuals attempted to stage a mass march from Selma to Montgomery along U.S. Highway 80 on March 7, 1965. This march of over six -hundred people was designed as a public protest of the government's systematic denial of civil rights for African-American citizens, highlighted by the denial of their voting rights. Judge Johnson's decision to allow the march was principled in his judicial review of the context of the event and its location. Johnson noted that the attempted march alongside U.S. Highway 80 from Selma, Alabama, to Montgomery, Alabama, on March 7, 1965 "involved nothing more than a peaceful effort on the part ofNegro citizens to exercise a classic 200

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constitutional right: that is, the right to assemble peaceably and to petition one's government for the redress of grievances" (p.l 06). He held that the State of Alabama had a duty and responsibility to keep the highways open for regular use and that the marchers could, in an orderly manner, walk along the highways without disrupting the vehicular traffic. He stated that the court had the duty to draw the constitutional boundary between the competing interests of society: Basic to our constitutional principles that the extent of the right to assemble, demonstrate and march peaceably along the highways and streets in an orderly manner should be commensurate with the enormity of the wrongs that are being protested and petitioned against. In this case, the wrongs are enormous. The extent of the right to demonstrate against these wrongs should be determined accordingly. This is true even though it is recognized that the right to exercise constitutional rights by marching alongside a public highway must be narrowed in the sense that such a right is subject to greater regulation and in the sense that greater abridgement of the right may, depending upon the circumstances, be warranted. This Court is, of course, concerned in this case only with the right to demonstrate and protest by marching along the public highway from Selma, Alabama to Montgomery, Alabama (p.1 06-1 07) Judge Johnson's Williams v. Wallace (1965) opinion is cited in this dissertation as one example of a judicial opinion in which the context of an event was used to determine the place-type as a public venue that would serve to remedy past injustices. Regarding speech conduct, in a law review article Judge Johnson stated that in Williams v. Wallace (1965) he had employed the "principle of proportionality," because, at times, speech that is otherwise "unprotected may be legal if it is the only means of communicating with a significant audience" (Johnson, 1969, p. 4). He determined that the request to march along the highway from Selma to Montgomery 201

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had required the court to examine the broader social context that had generated the march Judge Johnson's interpretation ofthe multidimensional aspects of the public highway from Selma to Montgomery emphasized how the surrounding social climate and context creates a public place from a material location. His place-typing assessment expanded the interpretation of a public highway as a public place to more than any other place would increase the visibility of the marchers and their message. His "principle of proportionality," was a place-typing process that produced a protected place to ensure that a class of people was protected to engage in protected class of expression. Judge Johnson's Williams v. Wallace ( 1965) decision did not generate a significant legal evolution of similar decisions in the lineage of civil rights cases that in the history of the Public Forum Doctrine. However, the "bubble laws" that are emerging in contemporary speech conflicts over pro-life protests and funeral protestors are structured along the same principle of proportionality. Summary of "Civil Rights" Cases In the public forum "civil rights" cases the Supreme Court's decision and judicial interpretations addressed the institutional policies and social structures that created segregated places. The "civil rights" cases provided "fair notice" as constitutional case law that the government's stewardship over public property did not convey the power to selectively restrict access of a class of people as members of the public to public property based on discriminatory reasons. The U.S. Supreme 202

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Court explained that the rights of all peoples to access public accommodations on public property are fundamental principles in the exercise of First Amendment rights of speech, assembly, and petition of the government. In the "civil rights" cases the Court interpreted the imaginal aspects of public place beyond the material aspects of public property that is defined by boundaries, markers, and maps. The Court typed the public property by their identity as a public place. The place-typing interpretation was focused less on form and shape of the public property and more on who had access to the place as a member of the public. The Court s assessment that African Americans were members ofthe public was a cross-typing of people and place to constitutionally establish all people have a right to access public places where civil liberties were constitutionally protected. During this period of time the concept of a "public forum" was emerging as a way to identify the concept of a public place that was emerging in the judicial interpretation of public property. The phrase "public forum" appeared in separate dissents by Justice Black and Justice Frankfurter in a 1961 Supreme Court decision on mandatory labor union fees (International Ass 'n of Machinists v. Street, 1961 ). Justices Black and Frankfurter used the phrase "public forum" to describe a place where individuals publically could communicate their views to the world in general. The phrase "public forum" was also used by Justice Potter Stewart in a dissenting opinion to describe the atmosphere of a courtroom as a public place of open testimony (Griffin v. California, 1965). 203

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In Loco Parentis and Student Place The U.S. Supreme Court's decision to overturn government restriction of expression in public places created a link between material place and the imaginal concepts ofthe freedom of speech as First Amendment rights. However, prior to the 1960s, the Court still granted deference to public officials to maintain order and control over their higher education campuses. The federal courts granted deference to primary, secondary, and post-secondary educational institutions based on the theory administrators needed to absolute control in their internal affairs to control their students (Bickel & Lake, 1999). Prior to the 1960s, a student's place on campus was defined by the doctrine of in loco parentis, the legal premise by which colleges and universities historically had exercised legal authority over students for disciplinary reasons (Black, 1999). Sir William Blackstone, in his 1770 thesis on English property law, had applied the phrase in loco parentis to educators in order to note that, by definition, teachers were given the right to act as parents when responding to disciplinary problems (Blackstone & Christian, 1836). Although this doctrine operated to grant educational administrators authority over student discipline and moral welfare, it did not impose an institutional duty for student protection (Stamatakos, 1990). During this period of time the judge's initial interpretation of campus places focused on the material aspect of the campus as a physical location. While, Justice Robert's statement in Hague (1939) established a link between material places such as streets, parks, and other 204

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public places and speech rights, the Supreme Court did not apply the same interpretation to the educational campuses. The in loco parentis doctrine creation of student place is an example of Hayden's (1995) concept of place as a social status and struggle which defines the imaginal aspect of place as where people are expected to function within a social hierarchy based on the physical location and spatial boundaries. In the 1960s, the Supreme Court signaled a new approach to interpreting the relationship between educational institutions and students who sought to exercise their First Amendment rights of expression. ln Shelton v. Tucker the Court declared that "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools" (Shelton v. Tucker, 1960, p. 47). Further, the Court described the college classroom, along with its surrounding environment, as "particularly the marketplace of ideas" (Keyishian v. Board of Regents 1967 p. 603). The Court's interpretation of educational campuses as places where constitutional rights are not excluded from the educational grounds created a student place that combined the material aspects of a campus with the imaginal concepts of higher education as a representation of enlightenment and democracy. Another important case of the 1960s included the Supreme Court's application ofthe First Amendment to a high school setting: First Amendment rights applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their 205

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constitutional rights to freedom of speech or expression at the schoolhouse gate (Tinker v. Des Moines, 1969, p. 506) The Court's interpretation of campus place types were expanding beyond the material setting to evoke imaginal terms that shaped material place as locations of constitutional protects. The use of terms "marketplace of ideas" and "schoolhouse gate" evoked symbolic images of the campus as a public places where students maintained their constitutional rights. Summary of the First Phase The Court's interpretation of material place expanded locations where public places exist for speech protection, while equally expanding the constitutional recognition of certain citizens. The civil-liberties and civil-rights cases cited above were instrumental in promoting fair notice of the Supreme Court's declaration that government actions and public policies that segregate and restrict access to public places, based on religion race or ethnicity are unconstitutional. Religious groups, African-Americans, and students began to receive the same speech protections that had been granted to other classes of people. These judicial decisions expanded the Court's examination of the material character of public property as a defining factor in determining accessibility to physical locations for the purposes of social expression and interaction. Despite the Court's challenge to governmental speech restrictions; it warned that the U.S. Constitution will only protect expression as long as it does not interfere with the overall use of the places. 206

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Second Phase: The Public Forum Era The second phase of developing the public forum as a legal precedent began in the 1970s when the term "public forum" was used in judicial opinions to describe applying First Amendment rights of individual expression to public property. The legal concept of a public forum began to become a standard interpretation of the Court's assessment of speech rights on public property. The phrase "public forum" was referenced in Supreme Court cases in the 1960s in general to describe statements made in a courtroom. By the 1970s, the term was used to classify public property as locations where individual expression is protected by the First Amendment. The Concept of a Public Forum In his 1965 article, "The Concept of the Public Forum: Cox v. Louisiana," Harry Kalven, Jr. linked the term public forum, and its legal concept, to Justice Robert's Hague comments on parks and streets: In an open, democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom. (1965, pp. 11-12) Kalven documented how the Court had supported speech protections on public issues yet seemed to struggle with creating constitutional protections for speech in public places. Kalven insightfully noted how several justices' concerns for defending speech protections actually had conflicted with the established "norm" of segregation in southern states, because the Supreme Court's judicial interpretation and case 207

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decisions ultimately had dictated public policy across the United States as constitutional law Kalven' s (1965) public forum is a use of imaginal place-typing that links a social phrase with the constitutional rights of freedom of speech in material places. By the end of the 1960s, the phrase "public forum" would become more prominent in Supreme Court decisions involving constitutionally protected speech on public property. Public Forum in Judicial Opinions Place-typing public property as public fora became a naming process of material place as a type of place where speech rights are constitutionally protected. The Supreme Court began to use the term "public forum" when determining First Amendment rights of expression on public property. Two significant public forum cases during the 1970s involved the use of sidewalks by protestors in Grayned v. Rocliford ( 1972) and Police Dept. of City of Chicago v. Mosley ( 1972). Both opinions were released on June 26, 1972. The Mosley (1972) decision directly used the phrase "public forum" twice and footnoted a reference to Kalven's 1965 article. In Justice Marshall's opinion, he wrote "selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone" (1972, p. 96). Justice Marshall's use of the term "public forum" to describe the sidewalk in front of a school building was the standard at the time of describing how the govemment could not restrict speech in a physical place based only on their authority to manage the property. 208

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Justice Marshall interpreted the sidewalk of a school as a location where expressive conduct was protected by the First Amendment of the U.S. Constitution. The Grayned ( 1972) decision, released the same day as Mosley (1972), also referred to Kalven' s 1965 article, "The Concept of the Public Forum: Cox v. Louisiana," to reaffirm the right of individuals to use public places for individual expressiOn: The right to use a public place for expressive activity may be restricted only for weighty reasons. Clearly, government has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable 'time, place and manner' regulations may be necessary to further significant governmental interests, and are permitted. (1972, p. 115) The Grayned ( 1972) opinion affirmed that the crucial question in determining whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time is the nature of a place and the pattern of its normal activities. In Grayned, the Supreme Court began to set rules for the restriction of speech, identifying the time of day "when," the place "where," and the manner of "how" the government could enforce speech regulations in a public forum (Grayned v. Roclford, 1972). The Grayned decision appeared to establish a public forum rule for addressing, case by case, what types of public property elements constitute a public forum. In 1972, the Supreme Court acknowledged that, while a campus may have a need for administrative control and order over students, "state colleges and universities are not separate from the community at large as enclaves immune from 209

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the sweep of the First Amendment" (Heazv v. James, 1972, p. 179). The changing interpretation of a campus as a place for college students was constitutionally solidified in Justice Douglas' concurrent opinion in Healy v. James (1972): Students-who, by reason of the Twenty-sixth Amendment, become eligible to vote when 18 years of age-are adults who are members of the college or university community? Their interests and concerns are often quite different from those of the faculty. They often have values, views, and ideologies that are at war with the ones which the college has traditionally espoused or indoctrinated. When they ask for change, they, the students, speak in the tradition of Jefferson and Madison and the First Amendment. (Healy v. James, 1972, p. 179) The Supreme Court ended the second phase of the development of the Public Forum Doctrine by affixing the term "public forum" to identify types of public property where individual expression is protected by constitutional rights. The normative values of speech rights in public places were evolving into a legal doctrine, as the Court continued to create public forum case law by interpreting the character and purpose of different types of public property as public fora. The physical features of higher education campuses symbolize a place of individual speech rights, which are protected by the First Amendment of the United States Constitution. The Court used a case by case interpretation to determine if the material aspect of a public property was a public forum as a place of First Amendment speech rights. The Court produced public forum case law by interpreting public places of public access where specific types of public fora were created for public expression. In addition to the public sidewalk cases ( Grayned v. Rockford, 1972; Police Dept. of City of Chicago v. Mosley, 1972), the Court opined that municipal theaters 210

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(Southeastern Promotions 1974) and public school board meetings (Madison Sch. Dist. v Wisconsin Empl. Rei. Comm'n, 1976) are places, or events, within the range of First Amendment protections for individual speech expression. The Court did not interpret all places, which are popular locations of public activity or populated areas, as public fora. The Court ruled that privately owned shopping malls (Hudgens v. National Labor Relations Board, 1976; Lloyd Corp., Ltd. v. Tanner, 1972), television advertising (CBS v. Democratic Nat'/ Committee, 1973), public bus placards (CBS v. Democratic Nat'l Committee, 1973; Lehman v. City of Shaker Heights, 1974), military bases (Greer v Spack, 1976), and prisons (Jones v. North Carolina Prisoners' Labor Union, Inc., 1977) are not locations of First Amendment protection as public fora. The Court found that the material aspects and use of these locations does not fit the character of places created for public access for individual speech expression. The Court was still in need of a consistent set of public forum categories for the multiple types of public property, variety of individual expression, and different forms of governmental authority being challenged in cases being presented to the Supreme Court. The Court was using a binary system of interpretation by determining if a place was a simple system that divided place into what Foucault described as the "Same" and the "Other." The Court was interpreting the analysis of the character of material place, and the symbolism of imaginal place, to create categories of types of places, rather than decide whether or not a place was a public forum. Regarding this 211

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second phase in the development ofthe Public Forum Doctrine, Kalven (1965) identified that the public forum concept needed something like Robert's Rules of Order to support, rather than deny, competing speech interests in the streets. Thus, a set of rules began to emerge to serve as a controlling guidance for identifying what features of a material place embody the imaginal aspects of a place-type as a public forum. Third Phase: Public forum Categories The third phase in developing the Public Forum Doctrine as a legal concept began when the Supreme Court sought to create an objective test for when to apply the Public Forum Doctrine to a broad range of cases involving speech issues. The Doctrine continued to evolve as the Court searched for a way to classify different types of public property, which were being promoted as public fora by individuals seeking speech rights. The Court reviewed cases involving the interpretation of more abstract types of public property than material places such as streets, sidewalks, and parks. The Court began to interpret public property for the material and imaginal aspects of place-types in order to create a conceptual overview of types of public fora The set of rules that emerged through the Supreme Court's judicial opinions are still the controlling guidance for applying the Public Forum Doctrine. In 1981, in Widmar v. Vincent, the Supreme Court conducted a public forum analysis of the University of Missouri at Kansas City, stating that the "campus of a public university, at least for its students, possesses many characteristics of a public 212

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forum" (Widmar v. Vincent, 1981, p. get page number) The Court added a descriptive analysis of the higher education campus as a distinctive type of place, distinguishing it from other public places: A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or building. (Widmar v. Vincent, 1981) The Supreme Court added that while campus authorities are not required to create a designated public forum, where one exists on a campus, student speech is protected equally to all others. We see, then, that the public forum concept was being developed as a way to interpret types of place, not only as one type of place. The public forum concept, thus, evolved into a typology of place, categorized as types of public fora. In the continuing evolution of the public forum analysis of public property, two years later, in Perry Education Ass 'n v. Perry Local Education Ass 'n (1983), the Supreme Court announced that "the existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue" (p. 44). The Court divided public property into (a) traditional, (b) designated, (c) limited, and (d) non-public public fora categories (Perry Education Ass'n v. Perry Local Educators' Ass'n, 1983). 213

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In the Perry (1983) decision, the Supreme Court used the word categories to identify the different types of public fora In this case the Court classified the first public forum category as a traditional public forum. As previously discussed, the Court had quoted Hague (1939) to identify parks and streets as being traditional public fora, located at one end of the public forum spectrum. The Court described traditional public fora as "places, which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed" (Perry Education Ass'n v. Perry Local Educators' Ass 'n, 1983, p. 45). The Court labeled these types of public property as the quintessential public fora in which the "state may also enforce regulations of the time, place, and manner of expression which are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication" (Perry Education Ass'n v. Perry Local Educators' Ass'n, 1983, p. 45). The second public forum category is the designated public forum This is public property the government has "intentionally designated for expression" (Perry Education Ass'n v. Perry Local Educators' Ass'n, 1983, p. 45). The Court has held that once public property is interpreted as a designated public forum, that property is afforded the same protections for speech as a traditional publicforum. Although a state is not required to indefinitely retain the open character of a facility, as long as it does, it is bound by the same standards that apply in the traditional public forum. 214

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Reasonable time, place, and manner regulations are permissible, and a content based prohibition must be drawn narrowly to effectuate a compelling state interest (Perry Education Ass'n v. Perry Local Educators' Ass'n, 1983 p. 45). Examples of designated public fora include municipal theaters, concert halls, auditoriums, and sporting arenas. The Court identified a third category of public property as the limited public forum, stating that it can be created for a "limited purpose for use by certain groups or for the discussion of certain subjects (Peny Education Ass'n v. Perry Local Educators' Ass'n, 1983, p. 45). A limited public forum is further distinctive because speech restrictions are subject only to a reasonableness test by the Court; while a designated public forum is subject to strict scrutiny by the Court. A fourth type of public forum identified by the Court is public property that is described as a non-public forum. Non-public fora are types of public property that, by tradition or designation, are not dedicated to open communication. The government may, without justification, restrict speech rights to individuals who participate in this forum's official business (Perry Education Ass'n v. Perry Local Educators' Ass'n, 1983, p. 53). The Court's examples of non-public fora include public property that were interpreted in earlier court cases as outside of the range of public speecf including, but not limited to, jails and prisons (Adderley v. Florida, 1966; Jones v. North Carolina Prisoners' Labor Union Inc., 1977), and military bases (Greer v Spack, 1976). 215

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The Public Forum Doctrine has evolved as a legal concept through judicial interpretations of place, in order to create categories of legal place-types analogous to Franck and Schneekloth's (1994b) place-types. The Perry (1983) opinion created a framework to interpret the character of a government property in a public forum analysis. The Perry categories allowed courts to distinguish types of public property that have a similar surrounding character and form. Interpretation of the character of a government property is an important step in the constitutional analysis of public fora (Perry Education Ass'n v Perry Local Educators' Ass'n, 1983). The Perry categories created rules that divided the public forum analysis into the interpretation of place. The traditional public forum test consists of judicial interpretation of a location's historic physical characteristics; while the designated, limited, and non-public fora are interpretations of the government's intention and use for creating a place. The Perry ( 1983) Court created a framework to evaluate the character of a government property in a public-forum analysis (Neveril, 1996 p. 1201 ), and stated that the public forum categories are "analytical shorthand" to guide legal opinions that address individual rights to access public property for expressive activity (1994b). The Public Forum Doctrine has evolved as a legal concept throughjudicial interpretations of space in order to create categories of legal space types in form, use and meaning (Perry Education Ass'n v Perry Local Educators' Ass'n, 1983) that are analogous to Franck and Schneekloth's space types. 216

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The Supreme Court has focused on the character of physical place in order to determine the power of government to regulate an individual's freedom of speech through the evolution ofthe Public Forum Doctrine. In 1983, the Supreme Court overturned a federal law that had prohibited public expression on the sidewalk surrounding the Supreme Court Building in Washington D.C. (United States v Grace 1983). The Court evoked Hague ( 1939) to identify the types of public places historically associated with the "free exercise of expressive activities, such as streets, sidewalks and parks, are considered, without more, to be public forums" (United States v Grace, 1983, p. 177). Two years after the Perry (1983) decision in Cornelius v. NAACP Legal Defense and Education Fund (1985), the Supreme Court released a companion public forum opinion that set the standard for public forum analysis: a three-part test requiring the Court to: (a) assess the type of speech being restricted, to determine if the speech is protected; (b) assess the type of public forum, using the Perry public forum categories; and (c) determine if the government's action in regulating access to the forum is within the requisite constitutional standards of judicial review. The Cornelius (1985) court established that interpreting the intentions of the government in creating a place is an important factor in public forum analysis; and the Perry ( 1983) court established that the intention of the government in creating a space is an important factor in public fora analysis. The Cornelius ( 1985) court focused on fundraising campaigns as a forum for public forum analysis, noting that to 217

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raise a First Amendment question, "a speaker must seek access to public property or to private property devoted to public use to evoke First Amendment" (Cornelius v NAACP Legal Defense and Education Fund, 1985). The Cornelius court used the Perry standard to interpret charitable fundraising campaigns-a public service not traditionally open to assembly and debate-as a non-public forum (Perry Education Ass'n v Perry Local Educators' Ass'n, 1983). Public Forum Character and Access The phrase "public forum" as a viable legal concept continues to evolve in constitutional law through the judicial interpretations of public property in the United States. The concept of a public forum as a place of public expression balances between two conflicting models, which Lillian BeVier (1992) identified. The enhancement model promotes the First Amendment as a positive right requiring the government to promote speech, and aligns with public space advocates' notion that a democratic society must provide physical locations for individuals to express their speech. The distortion model contends that the First Amendment is a negative right that only protects freedom of speech and other First Amendment rights by imposing restrictions on the government from denying speech (BeVier, 1992). My research for this dissertation focused on analyzing the type of forum as well as government restrictions on the time, place, and manner of individual expression on a property in question. 218

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Research on the Public Forum Typical research on campus public fora has focused on case law analysis to inform the constitutionality of public policy; however, it has not addressed the multidimensional aspects of a place as a variable in judicial interpretation of campus speech policy analysis and public forum classifications. While much research has not been conducted on the content analysis of judicial interpretation and description of campus space, Alexander (2007), Bausch (1995), Lee (2003) Bowlin (2004), Henderickson (1991), and Rivell (2003) did research First Amendment rights and campus policies. Rivell (2003) performed a comparative study of free-speech policies on twelve land-grant institutions in the United States, including the decision making process in developing such policies on university campuses. Research on university speech codes has included legal historic analyses of federal court cases (Bausch, 1995; Hendrickson, 1991) and comparative analyses of court cases and campus policies, creating model policies on freedom of expression (Lee, 2003). Bowlin (2004) used a Reasonable Forecast Tool in his dissertation to guide university administrators in analyzing case law in order to forecast the outcome of their speech issues. He analyzed historic free-speech case law to help them in decision making when contemplating discipline of a student for inappropriate internet speech (Bowlin, 2004). Using the Reasonable Forecast Tool to represent historic and recent First Amendment case law, he identified common fact patterns and court 219

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rulings in recent First Amendment internet cases in order to create governing guidelines. Because of our legally complex society, campus officials need a solid foundation to know how a particular issue has the potential to be litigated. The Public Forum Doctrine-through its creation, development, and classification-is in the final phase of Levi's three-phase model of developing legal precedent. Through judicial interpretation of public property in the United States, the phrase "public forum" as a viable legal concept continues to evolve in constitutional law. Chapter Summary This case law review of the Public Forum Doctrine addressed how the public forum concept evolved through the three phases of Levi's legal concept model. The legal conception phases were formatted using Franck and Schneekloth's material, imaginal, and coneeptual aspects of place-types. Development of the Public Forum Doctrine began as an interpretation of material places as a forum for individual expression. The concept of a constitutional right of speech expression was also recognized to expand to all groups as members of the public. The concept of a public forum as an imaginal place-type became a standard process for the judicial interpretation place-typing assessment of public property in their public forum analysis. The third phase in the development of the public forum as a legal precedent began with the public forum assessment of different types of public property that were not always material places. The Supreme Court in the Perry ( 1983) case 220

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developed a public forum analysis system to classify public property into four categories of public fora, in order to determine the government's exercise of authority to restrict speech in a type of public fora. The legal history has identified two eras of the public forum, the traditional era of speech protective doctrine and the current era of speech restrictions (Be Vier, 1992). The Hague ( 1939) concept of expression rights on public property determined that the exercise of the First Amendment was protected on public property. The speech protection era continued through the U.S. Supreme Court cases of the 1960s, 1970s, and 1980s, guaranteeing access to physical space (Be Vier, 1992). When the Supreme Court began to interpret more abstract types of space, their judicial interpretations of public property developed into the Perry (1983) categories of public fora. The speech restriction era continued with the Cornelius ( 1985) three-part public forum test to analyze space, speech, and sovereignty in the interpretation of speech restrictions on public property. The Supreme Court has been inconsistent in how it interprets physical property as a public forum. The Court's absolute description of sidewalks in Grace in 1983 (United States v. Grace, 1983) compared to the Court's 1990 opinion ruling that "the mere physical characteristics of the property cannot dictate forum analysis" (United States v. Kokinda, 1990 p. 727). This chapter examined the relationship between the emergence of the legal Public Forum Doctrine and its impact on the built environment. The evolution of the public forum reflects the Court's interpretation of public property as a connection 221

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among people, places, and speech. Typical research on campus public fora has focused on case law analysis to inform the constitutionality of public policy, but has not addressed the form, use, and meaning or access of the campus environment as variable in judicial opinions in public forum cases. 222

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CHAPTER 7 AURARIA CAMPUS AS A PUBLIC FORUM Introduction In Chapter 1, I briefly discussed Judge Figa's Mason v. Wolf(2005) legal opinion and decision His public forum analysis included both his legal and factual interpretation of the character of the flagpole area as a campus place-type, to decide the conflict between Mason's and AHEC official's interpretation of the flagpole area as a public form. Mason interpreted the flagpole area and the campus as a traditional public forum that was open to the public for speech expression. He stated that "I believe the purpose of a college campus is to exchange ideas between students and the community," (McPhee, 2005). Assistant Attorney General Patrick Sayas, who, representing Auraria officials, argued in the alternative, that the campus "is not a traditional public forum" and that the "focus of the campus mission is on members ofthe campus community," not off campus groups (McPhee, 2005). AHEC officials stated that the case should be dismissed because Mason did not have an ongoing relationship with the Auraria campus and no reason or authority to be on campus without AHEC's permission. AHEC asserted that Auraria was a restricted place for speech activity where access for speech activity was based only on the invitation of the campus officials. 223

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The final interpretation of the flagpole area as a type of public fora resided with Judge Figa, who had the authority to resolve the speech conflict that was filed in his court. As discussed in Chapter 3 the legal system in the United States grants courts the authority to serve as the final arbitrator of conflicts and disputes under law (Rombauer, 1991). This authority, vested in Judge Figa as a federal judge, was communicated in his judicial opinion. This chapter analyzes the content of Judge Figa's Wolfv. Mason (2005) opinion, and specifically examines my secondary research question, "In the Mason v. Wolf(2005) case, how did Judge Figa's interpretation of the flagpole area as a type of place produce a public forum?" The answer to this question is the foundation for addressing the primary research question, "How do judicial interpretations of campus place-types in constitutional law produce public fora on public higher education campuses in the United States of America?" I conducted a place-typing assessment of the three subject areas in the previous chapters to gain insight into the broader contextual place transformation of the identity, image, and interpretation ofthe flagpole area. The previous three chapters comprised an assessment of the multidimensional aspects of the flagpole as the following place-types: (a) Auraria as a case study on the transformation of a physical location in Denver, Colorado; (b) the multiple definitions and concepts of the American higher education campus; and (c) the evolution of the Public Forum Doctrine in constitutional law (Table 7.1 ). The place-typing assessment between 224

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Mason and the AHEC officials ofthe flagpole area illustrates the different aspects in which physical places are interpreted as multidimensional places. I organized this chapter to create a campus place-typing framework to use in the analyses of Judge Figa's interpretation ofthe flagpole as a place-type. I use the Flagpole PlaceType Model in my content analysis of Judge Figa' s interpretations of the flagpole area in the Mason v. Woif(2005) opinion. I then incorporated Judge Figa's public forum analysis into a place-typing assessment of the place attributes of the flagpole area. I then used the judge's place-type assessment of the flagpole area to design a Campus Place Public Forum Typology of selected court cases. Table 7.1 Flagpole PlaceType Model Auraria, Campus, and Public Forum Place-Type Material Imaginal Conceptual A place of maps and A place of memories The place Auraria as markers; Auraria's in Auraria's Denver's urban Auraria founding as a camp transition into renewal site and a and west Denver. Denver's westside higher education barrio. campus. Campus as a 1 A university, college, Grounds that resemble physical space; 1 or school viewed as a campus, hospital Campus grounds and an academic, social, campus, or landscaped Definitions buildings of a or spiritual entity. corporate campus. college, university, or school. First phase: Second phase: the Third phase: creation I Public comparisons of legal concept ofthe public forum decisions in similar becomes a fixed legal categories. Forum court cases. authority, using the term Public Forum. 225

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Content Analysis of Mason v. Wolf Judge Figa's judicial opinion included two primary steps in his public forum analysis. First, his review of the prevailing case law in the Public Forum Doctrine and second, his review of U.S. Supreme Court case law and prevailing public forum cases in the Tenth Circuit. In Judge Figa 's judicial analysis in the Mason v. Wolf(2005) case, he employed the Supreme Court's three-step framework from the Cornelius (1985) and Perry ( 1983) public fora categories. He described the Supreme Court's public forum analysis in Cornelius v. NAACP Legal Defense (1985) for examining constitutional protections afforded to private speech on government property: Applying those three steps here require this Court to determine: a) whether the plaintiffs' contemplated expressive activities, including their leafleting and placard display are protected speech; b) whether the flagpole area is a public forum, or a non-public forum, and if public, whether it is a traditional public forum, or a designated public forum, because the extent to which the defendants may regulate access to this area depends on the categorization; and c) whether the defendant's justifications for excluding plaintiffs from the flagpole area satisfy the requisite standard. (Mason v. Wolf, 2005, p. 1157) In his judicial opinion, Judge Figa stated that he easily had disposed of the first step in the public forum analysis, by concluding that Mason's activities were "either private religious speech or secular private expression, which are equally protected under the First Amendment" and thus, clearly constitutionally protected speech (Mason v. Wolf, 2005, p. 1157). The judge emphasized that "the major point of contention in this case arises under the second step of the three-part [public forum] 226

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analysis, namely whether the flagpole area is a public area, either a traditional public forum or a designated public forum" (Mason v. Wolf, 2005, p. 1157). Judge Figa decided conflict in the interpretations of the flagpole area between Mason and the AHEC staff. He cited Perry Education Ass 'n v. Perry Local Educators Ass 'n (1983) to establish that governmental authority to restrict speech is based on the public forum categories created by U.S. Supreme Court case law His analysis of the Auraria campus flagpole area was a legal place-typing of the flagpole area, in comparison to other contested places in public forum case law Judge Figa s public forum analysis in Mason v Woif(2005) is a case law review of the major Superme Court cases discussed in chapter 6 of this dissertation. He cited Perry (1983) and Hague v. CIO (1939) to define traditional public fora as places such as "streets and parks which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions (Mason v. Wolf, 2005, p. 1157). He used the Hague (1939) quote to identify streets and parks as archetypal traditional public fora He acknowledged that the flagpole area-at an earlier time, when the Auraria campus was bisected by Lawrence Street, prior to the pedestrian mall's construction in 1988-had possessed the physical characteristics of traditional public fora as a location of streets and sidewalks. He reviewed the historic use of the flagpole area in order to distinguish the location from traditional public fora, writing "There is no evidence that prior to 1988 the intersection of the two 227

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malls, the flagpole area had been used traditionally for purposes of assembly, or for communicating thoughts between citizens and discussion of public questions" (Mason v. Wolf, 2005, p. 1159). Judge Figa decided that the Supreme Court's definition of traditional public forum described "types of places generally that are public fora, and not necessarily descriptive of the history of the particualr place that is at issue in any given case" (p. 1158). Judge Figa continued his historic analysis of the use of the flagpole area by writing that after the flagpole area was built in 1988, AHEC had required all groups to obtain permits to set up displays or hold demonstrations. He emphasized that the flagpole area had been used during the past two decades for expressive purpose by student groups, but not by un-sponsored non-student groups (Mason v. Wolf, 2005) He bolstered this distinction by concluding that the Perry (1983) public forum category of traditional public fora was limited to a "description ofthe types of places generally that are public fora, and not necessarily descriptive of the history of the particular place that is at issue in any given case" (Mason v. Wolf, 2005, pp. 11581159). He concluded that the flagpole area, while similar in physical character to a municipal sidewalk, did not qualify as the quintessential type of traditional public fora. Conversely, he continued his interpretation of the flagpole area by comparing the place-typing of the area with another type of Denver sidewalk in federal case law 228

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Comparison to City Sidewalks To address AHEC's argument that the Auraria campus pedestrian malls were non-public fora, because the flagpole area was not a public park or sidewalk, Judge Figa compared the flagpole area to the judicial interpretation of the Galleria of the Denver Performing Arts Center (DCPA) as a non-public forum, as cited in the Tenth Circuit Court of Appeals case, Hawkins v City and County of Denver ( 1999). The speech conflict in Hawkins (1999) involved the restriction of a group of union musicians protesting the use of pre-recorded music in the ballet performances in one of the DP AC performance venues; the musicians had sought to use the Galleria sidewalk area to picket and distribute leaflets to patrons attending performances at the DPAC. Judge Figa differentiated the flagpole area from the Galleria, whose sidewalks were connected as two auto-free zones, located approximately 651 yards from the Auraria campus across Cherry Creek and Speer Boulevard (Figure 7.1 ). The Hawkins' opinion described the DPAC Galleria as "an open air, glass covered pedestrian walkway approximately 600 feet long, with a width ranging between 32 and 40 feet" (p. 1284). The Galleria is located on Curtis Street and was "formerly a public street. .. bounded on one side by two large theaters, the Temple Hoyne Buell Theatre and the Auditorium Theatre, and on the other side by the DP AC parking garage and the Gamer Galleria Theatre" (p. 1284) The judicial opinion described Fourteenth Street as a "public right of way" bordering the east side of the 229

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Figure 7 1 Aerial of AHEC and DPAC (Image courtesy Google Earth) Galleria and that "several additional performing arts complexes and a sculpture park which separates the DPAC from Speer Boulevard" bordered the west side ofthe complex (p. 1284). The Hawkins' opinion described the surrounding form of the DPAC facility and determined that the Galleria was designed to serve as the exclusive means of ingress and egress for patrons of DP AC facilities and events (Figure 7 2). The Galleria's walkway and sidewalks were specifically for the use of theater patrons to congregate between performances. The Hawkins court determined that when the Galleria's construction had altered the physical characteristics and functions of the public street (Curtis Street) the sidewalks through the Galleria had lost their traditional public forum status. The court added that the Galleria also was not a designated public forum, because Denver s DPAC policy and practice had never 230

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opened the Galleria for public expressive activity. In addition, the DPAC policy had prohibited demonstrations and leafleting without permission of the Galleria's facility manager. Figure 7.2 DPAC Galleria and Sidewalk (Photograph by author) The Hawkins v. City and County of Denver (1999) opinion used a placetyping approach to determine that the Galleria was "not a park, nor is it analogous to a public right of way or thoroughfare" as a former city street that no longer forms "part of Denver's automotive, bicycle, or pedestrian transportation grid, for it is closed to vehicles, and pedestrians do not generally use it as a throughway to another 231

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destination" (p.l287). The area's history as a city street was not a persuasive argument in the judicial interpretation of the covered walkway. The judicial place typing assessment of the Galleria's physical form and location significantly influenced the judicial interpretation that the area was a place for theater patrons and not, by custom, a path of travel by the public to access Speer Boulevard from downtown Denver. The Hawkins' opinion contained illustrations to argument the judicial opinion with a visual representations of the DPAC complex and the surrounding Denver streets (Figures 7.3 and 7.4). The use ofthe drawings provided a visual image ofthe Galleria to augment the written text of the judicial opinion. The use of an illustration I this judicial is provided a broader contextual understanding of Gallerias' physical features and form. In addition the drawings visual communicated Gallerias' proximity and relationship with the surrounding Denver streets and buildings. The use of a visual representation highlights the importance of supplementing the written text of a judicial opinion with a visual representation to enhance the comprehension of the judicial interpretation of a contested place in public forum cases. 232

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t Denver Performing Arts Complex Figure 7.3 DPAC Illustration #1 (Hawkins v. City and County of Denver, 1999) ILH\KI:,;s U TY. C O!'!\"TY OF" I:>F.NYF.R 1:!9:) tltot'.,..t u { o-..cu, ''"" Denver Performing Arts Complex Maps Figure 7.4 DPAC Illustration #2 (Hawkins v. City and County of Denver, 1999 233

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Analysis in the Hawkins opinion of the Galleria's history as a city street paralleled Judge Figa's description of the Lawrence Street and Auraria flagpole area's previous history as a Denver street. The development of the Denver Performance Arts Complex (DPAC) was similar to creation of the Auraria campus; Fourteenth Street had been closed as a city street to create the Galleria area as a pedestrian mall for the DP AC venues (Figure 7 .5). Figure 7.5 DPAC Galleria Entrance and Sidewalk (Photograph by author) The Denver Performance Arts Complex was created in 1974, also to stimulate economic activity, by creating the Denver Theater District within geographical boundaries in downtown Denver (Moore, 20 1 0). The pedestrian walkways on both 234

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the Auraria campus and DPAC are adjacent development sites that share a history as two locations that were redesigned to promote the economic development of the City of Denver. The resultant development converted these Denver streets into automobile-free zones. The DPAC Galleria (Figure 7.6) and Auraria campus sidewalks (Figure 7.7) are linked as interconnecting streets and sidewalks at Speer Boulevard as part of the Denver pedestrian circulation system (Denver Planning Office, 1978) Figure 7.6 DPAC and Speer Boulevard (Photograph by author) 235

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Figure 7.7 Lawrence Street Mall and Speer Boulevard (Photograph by author) Both redevelopment projects resulted in converting Denver streets into pedestrian walkways. The sidewalks along Curtis and Lawrence at one time had possessed the characteristics of traditional public fora as city sidewalks, yet were judicially interpreted as different types of public fora and public places based on the changes to the campus. Judge Figa disagreed with AHEC's argument that the flagpole area was a nonpublic area He distinguished that the campus a state-owned and state-regulated facility, was not a private entity. Further he interpreted the form and use of the 236

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flagpole area as "an unrestricted walkway that is used, or can be used, by the public as well as the students" (p. 1159) He determined that the pedestrian malls served a general function as a public place on the campus, not a limited purpose, providing ingress and egress to Auraria's campus buildings (Figure 7.8). Figure 7.8 Auraria Sidewalks (Photograph by author) Judge Figa's comparison ofthe DPAC sidewalks to the Auraria campus was a place-typing assessment of the distinction between the types of sidewalks interpreted as non-public fora or as designated public fora He determined that the Auraria 237

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campus sidewalks allowed greater access for pedestrians than the limited nature of the Galleria. His place assessment parallels Tuan' s ( 1977) distinction that space is for movement while a pause in movement makes it possible for the location to transform into a place. His description of the flagpole area's form as an open section of the sidewalk determined that the Auraria campus sidewalks were designed for use by the general public and did not exist solely to provide individuals to enter and leave campus buildings. Judge Figa supplemented his place-typing assessment with a visual assessment of the flagpole area. He viewed the photographs of the area, which had been submitted as evidence; plus, during the trial, he conducted a personal site visit to the area, along with members of the plaintiff and defense teams. Based, in part, on his visual assessment of the flagpole area, he interpreted that it was "quite apparent that the flagpole area fits the description of a designated public fornm" [italics mine] (Mason v. Wolf, 2005, p. 1159). Judge Figa also supported his interpretation of the flagpole area as a designated public forum by concluding that AHEC had not denied Mason use of the flagpole area based on the content of Mason's speech. AHEC's records of permits showed them granting a wide range of organizations and viewpoints to use the flagpole area. Rather, Judge Figa identified that a determining factor for AHEC was the assessment of the status of the speakers in permitting a group to demonstrate at the flagpole area. The status of the groups was based on the association with AHEC 238

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as a student group student-sponsored group or off-campus group sponsored or affiliated with a student group. Judge Figa also rejected Feuerborn's argument that a reason for the regulation was a concern for disruption of pedestrian traffic around the flagpole area, based on prior events that had involved an off-campus group using the flagpole area to protest abortion in 2000. The judge stated that Feuerborn could not articulate a reason for a ban on the use of the flagpole area by non-student groups, and he dismissed Feuerborn's assertion that AHEC needed to reserve the flagpole area for students since they were the campus's main constituency as a justifiable priority of the campus to exclude non-students from the flagpole area. Judge Figa held that AHEC could ensure that the flagpole area was available for student use by simply coordinating the scheduling of events or use of the flagpole area by students and non-student groups. Further the judge acknowledged that the government could have significant reason to differentiate between the types and status of groups when regulating speech activity on a college campus. Judge Figa completed the third step in the public forum analysis by determining whether AHEC s exclusion of Mason from the flagpole area had been conducted within constitutional standards. He determined that AHEC's unwritten regulation of off-campus, non-sponsored groups to use the Plaza Building steps for public expression of private speech had not provided ample, open alternate channels of communication based on the distance between the two locations. The judge wrote 239

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the following description of how campus administrators constitutionally could distinguish between types of people, to restrict access for speech activity on the Auraria campus: It may well be that there are significant governmental reasons to differentiate between student groups and nonstudent groups sponsored by a campus organization, on the one hand, in contrast to unsponsored nonstudent groups on the other hand, when regulating speech activities on a college campus. But no such significant reasons have been articulated by the defendants here to justify a regulation differentiating between student and non-student groups being assigned to different locations on the campus only 130 feet apart. Thus this Court finds that the unwritten regulation limiting unsponsored nonstudent groups to the Plaza Building steps, and prohibiting them from the flagpole area without a student sponsor, lacks a sufficient justification to pass the applicable constitutional test and that the enforcement of such a regulation violated the First Amendment rights of plaintiffs. ( 11611162) Judge Figa did not address the constitutionality of AHEC's designation of the Plaza Building steps as a Free Speech Zone, because it was within their general authority to restrict locations of public expression on the Auraria campus. Further, he indicated that AHEC could restrict the area for a primary type of user, based on the mission of the campus, as long as the restrictions on speech were within the constitutional justifications. If the place was programmed or scheduled for specific use, the state would have more justification to restrict access for a specific status of users. However, Judge Figa found that the restriction of off-campus and nonsponsored groups from the flagpole area, without regard to the existence of an actual scheduling conflict, did not meet the test of a regulation narrowly tailored to meet government interest. The judge determined that AHEC's control of Mason to access 240

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and use the flagpole area had not met a significant government interest because the flagpole area was not overcrowded or congested on the day in question. The historic documents, photographs, and research on Auraria, shown in Chapter 4, are interpretive tools that reveal the area's history of public discussion on public issues by citizens of Auraria and west Denver prior to conversion of the area into a higher education campus. Using historic documents is an interpretive method and cross-disciplinary way to identify changes to the character of a campus place, over time. My research also assessed the changing character of campus place, to determine changing judicial interpretations of campus place, over time. Judge Figa also examined the meaning of the flagpole area as a place in fulfilling the Auraria campus's mission as an educational institution. He identified that the mission of the Auraria campus was to serve students; therefore, campus administrators constitutionally could restrict places on the campus to be maintained solely for campus operations. His final assessment in the Mason v. Woif(2005) case was over the justification of restricting Mason from accessing the flagpole area for speech activity. Judge Figa rejected AHEC's claim that it had been necessary to restrict Mason because he was not a student and that they needed to preserve the flagpole area as a forum for the campus community. In addressing this argument, the judge noted that the Auraria campus had several public places that were open and unrestricted for general use by the public. He also acknowledged that the campus was state-owned and state-regulated and not a private entity. He also distinguished the 241

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specific uses of the DPAC Galleria from the Auraria campus malls than run the length of the campus in all directions. Auraria Campus Place Typing Judge Figa's Mason v. Wolf(2005) public forum analyses of the character of the flagpole area was a judicial place assessment to determine the public forum category. Judge Figa's interpretation ofthe form, use, and meaning ofthe flagpole area was the deciding factor in his public forum analysis. He visited the site and made a place assessment of the form and physical description of the Lawrence and Tenth sidewalks. He then reviewed how pedestrians use the campus sidewalks to determine that the sidewalks were designed for general use for pedestrians to walk throughout the campus. Judge Figa conducted a micro-place assessment to determine that the campus was not a traditional public forum. He interpreted the meaning of the flagpole area by reviewing the history because the area as a city sidewalk did not have a history as a place of speech expression prior to the transition of the area into a higher education campus. Yet he conducted a macro-analysis of the campus to determine that the flagpole area was not a non-public forum. Judge Figa place assessment actions parallel Franck's (1994) place-typing technique. Franck describes the actions to assess the form and use place-typing attributes are observable while the meaning attributes are primarily inferred or interpreted. For this research, I added access as a fourth place-typing attribute to 242

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address how judges determine if a campus place-type is a public forum by who has access to engage in speech activity. Judge Figa identified the flagpole areas was designed as a crossroads of the campus to classify the flagpole area as a designated public forum. He concluded that the Auraria campus was a place that was open to the public because the campus contained physical locations that were accessible to the public. Judge Figa noted the AHEC administration can require the individuals to schedule a campus place for speech activity. He ultimately interpreted that the flagpole area was an designated public forum he determined that the AHEC staff did not have a justifiable reason to prohibit non-students from the flagpole area (Mason v. Wolf, 2005, p. 1161 ). Judge Figa contrasted the Flagpole area with the non-public forum classification of the Galleria in the Hawkins v. City and County of Denver ( 1999) case. Franck (1994) asserts the stronger the link between form, use, and meaning the narrower the interpretations of the place. I speculate Judge Figa's interpretation of an interior or enclosed campus place-type would have resulted in a different public forum classification. Thus, the outcomes of the case would have been different if Mason and his group would have sought to use a classroom or an enclosed place for their leafleting. A place that was enclosed in form, had a more specific use, and conveyed a stronger meaning as a student only or educational place and related mission would be interpreted as an accessible place for public expression. Is the 243

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expression of speech in a classroom incompatible with the educational mission of the campus since the Supreme Court identified the college classroom and the surrounding environs as the "marketplace of ideas"? The question of accessible place attribute is applied in the following four attributes of campus place-type assessment based on Judge Figa's public forum analysis and interpretation of the flagpole area on the AHEC campus: Form-includes both long-lasting and temporary physical attributes used as intervention to create and furnish a place, either indoors or outdoors. Form attributes are the location and dimensions of the sidewalk area, an open area with high pedestrian traffic, so placement of the location is important. Use-describes both general and specific activities performed at a setting or place. The general design and location of the sidewalks are for general use and pedestrian traffic Judge Figa distinguished this type of sidewalk from the DCP A location, because by location, that sidewalk served a singular and more specific purpose. The place and programming were for access into buildings. Also: "if the place is isolated or apart from other locations and would lend a person to perceive it as a singular use and less of a traditional public forum." Meaning attributes that are practical and symbolic messages, including both the latent and manifest purposes of a place. Judge Figa determined that the overall purpose of the AHEC campus was to serve an educational mission. The status of the speaker is an important aspect in the interpretation of the meaning of campus place-types on higher education campuses. Student status is a specific spatial identity associated with the meaning of a higher education campus. Campus place-types are reserved for a distinctive category of individuals who have access to a place for speech activity. Access-the right to enter and remain in a place to engage in speech activity. Access is a factor, in this typology, in order to address how 244

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individuals based on their status as class of speaker, can enter and remain in a physical location due to their constitutional right to engage in speech activity. The access to engage in speech activity was founded in Bevier's positive right that the government has a responsibility to provide places for individuals to engage in speech activity, versus the negative right that government is only required to refrain from activity that would not to interfere or suppress speech. Summary This chapter dissected the content analysis of the Mason v Wolf(2005) opinion case, to identify the significant factors in Judge Figa's interpretation of campus place as a public forum. I separated his interpretation of the flagpole area on the Auraria campus into four place-typing assessment classifications: (a) physical form of the place; (b) how the place is used over time; (c) meaning of the place, based on the purpose for which it was created; and (d) accessibility of the place for speech activity. In Chapter 8, I compare this place-typing assessment classification to the judicial interpretations of campus place to other cases selected for this dissertation. 245

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CHAPTER 8 STUDY FINDINGS: PUBLIC CAMPUSES Introduction This chapter addresses the content analysis of selected judicial opinions of public forum court cases from across the federal circuits. I expand on Judge Figa's Mason v. Wolf(2005) opinion, in order to conduct an analysis of the content of these selected campus public forum cases from other judicial circuits and to address the final research question: "How do judicial interpretations of campus places in other campus court cases produce public fora across the different federal court circuits?" I compare and combine my Chapter 7 content analysis of the Mason v. Wolf(2005) judicial opinion to the selected campus court cases, in order to create a Campus Place Public Forum Typology. Comparing public forum cases across federal circuits provided insight into the complexity of my primary research question, "How do judicial interpretations of campus place in constitutional law produce public fora on public higher education campuses in the United States of America?" The findings from my content analysis are divided into three parts: (a) inventory of the judicial opinions, (b) evaluation of the opinions, and (c) assessment of how the opinions are interpretations of campus place-types as public fora 246

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categories. I conclude this chapter with a place-assessment summary of the selected cases, in order to apply it in Chapter 9 to the Auraria campus. The Campus As a Place Apart The Supreme Court has interpreted the campus as a public location that is a place apart from other types of public fora (e.g., streets, parks, municipal theaters), because the mission of higher education is to educate students. Supreme Court cases have established public forum case law, which is used by federal circuits to interpret and conduct place analysis on higher education campuses. The following statements from Supreme Court decisions identify how the Court has interpreted the campus as a place distinct from other types of public fora: The college classroom, with its surrounding environs, is peculiarly the marketplace of ideas Healy v. James (1972, p. 180) A university differs in significant respects from public forums, such as streets or parks or even municipal theaters. Widmar v Vincent ( 1981, p.268) This Court has recognized that the campus of a public university at least for its students, possesses many of the characteristics of a public forum. Widmar v. Vincent (1981, p.268) We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings Widmar v. Vincent (1981, p.268) A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. Widmar v. Vincent ( 1981, p.268) 247

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These Supreme Court cases are cited because their judicial interpretations distinguished the special nature and characteristics of a higher education campus from other types of public property. Access and Visibility Access to higher education campuses is an important element in public forum cases. Public space categories identify the concepts of open and accessible as criteria when interpreting public space. The concept of democracy also is principled on the concept of open debate and discussion as part of the public debate process. The visibility of a location to the public to hear and see speech expression is a key reason individuals have sought access to open spaces at higher education campuses. That campus places provide visibility to a wide audience is an important element in Henaff & Strong's (200 I} concept of public space as a stage for public expression in the theater of public life. Invited Campus Speakers The oldest case I found in campus case law involved access to a higher education campus by speakers invited by student groups. Stacy et al. v. Williams (1969), one ofthree separate campus speech cases in 1969 addressing speakers invited to campus by student groups was heard in the U.S. District Court for the Northern District of Mississippi. Stacy was consolidated from a set of cases in which students and faculty at the University of Mississippi and Mississippi State University had challenged the constitutionality of a rule that arbitrarily barred invited speakers 248

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from higher education campuses in that state. Stacy addressed the constitutionality of the Board of Trustees of the Institutions of Higher Learning of the State of Mississippi to have unilateral authority to regulate faculty and staff inviting offcampus speakers to higher education campuses in Mississippi. The district court prohibited the University of Mississippi's administration from restricting invited speakers from conducting speech activity on campus and ruled that the campus must remain an open place for democratic debate and sharing of ideas in an open forum. In his judicial opinion on Stacy, District Court Judge Keady described his examination of the constitutional principles of campus speech control as situations in which the court must determine when the "university's power ends and students' I rights begin" (p 969). He cited Adderly v. State of Florida (1966) to affirm that the State had the same power as private-property owners to preserve public property for the use for which it was lawfully dedicated. He wrote that "the facilities of state colleges and universities, dedicated as they are to the specialized function of education, may be utilized solely for that purpose" (pp. 969-970). In this opinion, he was recognizing the new constitutional standards for courts to balance a campus administration's management of its campus with the students' right of autonomy to engage in public expression while on a higher education campus. The Stacy et a/. v. Williams ( 1969) court opinion referenced another campus speaker conflict: Brooks et al. v. Auburn University eta/. (1969), which opinion from the U.S. Court of Appeals for the Fifth Circuit upheld a district court decision that 249

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Auburn University administrators constitutionally could not prevent their students from inviting a civil rights leader to speak on their campus. The other similar case involving conflict over invited speakers and speech on campus was Smith eta!. v. University ofTennessee eta!. (1969). The university administration had cancelled several speakers already scheduled to speak on campus, including Dick Gregory because of"questionable educational benefit" and Timothy Leary because ofhis advocacy of drug use. The administration declared that their decision to prohibit these speakers was necessary for maintaining control over having only competent speakers invited to the campus. The court determined that the University of Tennessee administration's policy to have the final determination of who could speak on campus was so vague and overly broad that it allowed them unrestrained power to censor expressiOn on campus. These campus speaker cases in the late 1960s were precursors to the judicial interpretation of campus places as public fora. The courts' application of public forum to higher education campuses began a place-typing assessment for identifying the limits of administrative authority, recognition of student rights, and the permeability of campus boundaries as public place. Newspapers The distribution of newspapers on campus also generated numerous public forum court cases, which alleged unconstitutional administrative restrictions of First Amendment freedoms of speech and the press. The public forum cases selected for 250

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this dissertation only involve restrictions on the distribution of newspapers on campus, not censorship of the papers' contents. In Solid Rock Foundation v. Ohio State University (1979), Ohio State University (OSU) was challenged by a student organization for regulating the distribution of a national Christian newspaper at outdoor campus places. OSU sought to control all newspaper distributions on their campus. They allowed distribution of their official student newspaper, The Lantern, to 145 points around the campus; yet limited other newspaper distributions to only 8 out of approximately 100 campus buildings, plus prohibited placement of any newspapers anywhere in the outdoor areas on the grounds. The university declared that its newspaper ban was necessary in order to create an "aesthetically pleasurable" and "serene atmosphere conducive to study and sober reflection" (Solid Rock Foundation v Ohio State University, 1979) (98-99). OSU sought to maintain an orderly campus in order to ensure the free movement of students and faculty, and to fulfill the educational objectives of the campus. District Court Judge Duncan of the U.S. District Court for the Southern District Ohio, after assessing the campus as a place of open exchange of ideas and views, granted an injunction to the student group. The court found that OSU had not established that their restriction on newspaper distribution was necessaty for averting harm that would interfere with the campus environment. The judge concluded that OSU had opened a public forum by allowing distribution of the internal campus 251

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newspaper ; therefore OSU 's restrictions were unreasonable denial of access by other newspapers to the campus fora (Solid Rock Foundation v. Ohio State University, 1979) A similar case involving the banning of student newspapers was presented to the U.S. District Court for the Western District of Texas in Texas Review Society v Cunningham (1987). The administration at the University of Texas at Austin (UTA) had imposed a rule prohibiting solicitation on campus. The rule allowed distribution of newspapers in newspaper racks, when approved by the campus administration; but restricted newspapers with paid advertisements from being handed out at student club tables on the West Mall. The motivation was to control the amount of solicitation and advertisement in student newspapers distributed by student groups, concerned with the campus being overwhelmed by newspapers soliciting funds. The West Mall was identified in the judicial opinion as an area in which student organizations were allowed to maintain tables to distribute literature and engage in dialogue with pedestrians. District Court Judge Nowlin described the West Mall: The West Mall is an area on the UTA campus bounded on the west by Guadalupe Street, on the north by the Texas Union and the Academic Center, on the east by the Main Building and on the south by Goldsmith Hall and Battle Hall. The West Mall is an area in which student organizations are permitted to maintain tables from which they can distribute literature and engage in dialogue with passersby. Here, students may partake of a genuine marketplace of ideas. (p.1241) The court opined that the university had limited periodicals and other literature, containing advertising solicitations for enterprises not affiliated with the university, to 252

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two places on campus: ... 1) the sidewalk beside Guadalupe Street bordering the mall on the west; and 2) a space in the center of the south end of the Mall, between Goldsmith Hall and Battle Hall, opposite the Academic Center" (p. 1242). The Vice President for Student Affairs at University of Texas-Austin testified in the district court proceedings that the newspaper distribution restrictions had been implemented to "protect the marketplace of ideas that exists on the West Mall" (p. 1243). The main intent of their rule had been to prevent the solicitation of funds through a free newspaper handed to pedestrians walking the West Mall as a way of bypassing the solicitation rule. The administration confirmed that their intent was to restrict off-campus groups from soliciting funds through newspapers. The rule also had been designed to address the possibility of a cumulative effect of allowing over six-hundred student organizations to distribute publications with advertisements, particularly in the West Mall. The campus requirement to use newspaper racks or vending devices, approved through the university, was a method to monitor the number and types of newspapers being distributed on campus. The court upheld UTA's newspaper distribution regulations as permissible time, place, and manner restrictions; stating that the campus administration had not created a traditional public forum but a limited public forum for its student organizations. Thus, the restrictions were content neutral applications of the administration's authority over the university. 253

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Approximately five years after Texas Review Society v. Cunningham (1987) was decided, the U.S. Court of Appeals for the Fifth Circuit heard a similar case regarding the Southwest Texas State University campus in San Marcos, Texas. The fact pattern in Hays County Guardian v. Supple (1992) also concerned off-campus newspapers being restricted against distribution on campus. The Hays case focused on a plaza amidst several university buildings, known as the "Quad," a campus place designated by the university as a free-expression area that could be reserved by students for demonstrations and symbolic structures. Students were permitted to distribute pamphlets, newspapers, and any other literature without advertisements, throughout the outdoor areas of the campus. The appellate court distinguished the Southwest Texas State University campus from a non-public forum by citing both Widmar (1981) and Healy (1972), to affirm that "The undisputed facts show that the outdoor grounds of the campus, such as the sidewalks and plazas, are designated public fora for the speech of university students" (Hays County Guardian v. Supple, 1992, p. 116). The judicial opinion described that the campus features had performed a place assessment of the campus by associating the campus's character with that of a city: 5,000 students live and work on the campus, making the campus, in the words ofthe University's own promotional booklet, a "town" of which the resident student will be a "contributing citizen" and "voting member." The campus's function as the site of a community of full time residents makes it "a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment," ... and suggests an intended role more akin to a public street or park than a non-public forum. (Hays County Guardian v. Supple, 1992, p. 116) 254

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The court acknowledged that their interpretation of the campus was guided by the university's own description ofthe campus in its promotional booklet. Promotion of the campus environment as a city for the students had established a representational place, associated in images and words that linked the students and the campus The Hays (1992) opinion applied a compatibility test to determine if the campus administration's restrictions had been based on an overall incompatibility with the campus environment. In their case brief, the administration warned that allowing the distribution of off-campus newspapers on the university grounds would "impede access into buildings, create an excessive litter problem, and create a bazaar like atmosphere on campus" (Hays County Guardian v. Supple, 1992, p. 119). The appellate court was not impressed with the campus administration's reason for its distribution restrictions, and wrote the following explanation on why the university had failed to show that the newspaper distribution restriction was narrowly tailored to protect the campus environment: Assuming that the University faced some marginal increase of litter, congestion, and unwelcome advances by over-zealous, newspaper wielding students, there is no substantial evidence that the anti solicitation regulations were reasonably well fitted to preventing these ills. If the University wishes to prevent litter, it should prohibit littering ... If it wishes to prevent overcrowding, then the University should regulate the time and place of students who hand out papers on the campus to prevent congestion ... If the University wants to prevent obstreperous distribution of the papers then it should forbid students from pressing their publications on unwilling recipients. Prohibiting students from handing out free "unsponsored" newspapers on the grounds that the newspapers include an advertisement, no matter how willing the recipient or how neat and circumspect the distributor, is not 255

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a narrow tailoring to protect identified interests. (Hays County Guardian v. Supple, 1992, p. 116) The Hays case set the standard for interpreting the campus as a designated public forum for students in the Fifth Federal Circuit. The Hays opinion also established that public forum analysis can include an assessment of a speaker's status, by students and off-campus individuals, when determining who has priority and access rights to a campus place for individual expression. Lawns and Plazas A common form of protest and demonstrations in the mid-1980s was the construction and occupation of cardboard shanties on campus lawns, to protest university investments in companies engaging in business with South Africa. These shantytowns were used to symbolize the living conditions of black South Africans living under a political system of apartheid. Such shanties were erected on the lawns and plazas, in a ''campus divestment movement," at the University of Wisconsin, Columbia University, University of Utah, and University of Florida (Soule, 1997). Student shantytown protest was the conflict in two federal cases involving the University of Utah (University of Utah Students Against Apartheid v. Peterson, 1986) and the University of Virginia (Students against Apartheid Coalition v. O'Neil, 1987). In separate cases, the students at these different campuses filed federal complaints when they were required to remove the shanties they had erected on campus to symbolize their opposition to apartheid. The University of Utah students had erected their shanties on a grassy area near the student union building. Initially, in February 256

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1986, they had been allowed to construct the shanties However during the next six months, their displays were vandalized during evening hours by counter-protestors seeking to have the shanties removed. The administration responded by increasing police patrols at night, but later determined that the increased liability necessitated removing the shanties from the campus. In July 1986, the University of Utah administration ordered the students to dismantle their shanties. The students countered with a federal complaint that the removal order violated their freedom of speech; they sought an injunction from the Utah Federal District Court to prohibit the University of Utah from removing the shanties from the campus. District Court Judge Aldon J. Anderson interpreted that the University of Utah campus for "students and student groups" was at "least a limited public forum" (University of Utah Students Against Apartheid v Peterson, 1986 p. 1208); that constitutional law allowed the University of Utah to create time place, and manner regulations on student expression. However the university did not have any regulations in place that addressed speech expression on campus so Judge Anderson denied the University of Utah's motion for summary judgment and granted the students a motion for injunction against removing the shanties from the campus. Judge Anderson supplemented the injunction by only al1owing the students to maintain their portable shanties during the day; however, he required them to remove the shanties from the grassy areas each night, reasoning that removing the shanties each evening would not diminish the students' expression because the display was not 257

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visible at night. The judge also decided that the shanties could remain in place until the University of Utah had created a set of constitutionally permitted regulations on campus speech expression. Judge Anderson's interpretation that this campus was a limited public forum for student expression meant that the campus places were available for student expression by time place and manner The visibility of public protest as student expression was also a factor in Students Against Apartheid Coalition v O'Neil (1987) The iconic campus symbol of democracy was the University of Virginia's Lawn a public stage for student protest. The constitutional speech conflict was over the erection of shanties by students on the Lawn during the 1985-1986 academic year. University of Virginia students sought a campus location to communicate their message of opposition to apartheid to the public in general specifically to the university's Board of Visitors, the governing body. The students selected the Lawn as a symbolic site because it was highly visible from the Rotunda where the Board of Visitors met four times a year. The students filed a constitutional challenge against the University of Virginia after the campus administration required removal of the shanties from the Lawn (Figures 8.1 and 8.2). The Lawn as the location of the students' protest is in stark contrast to the symmetrical, uniform, and formal place that was designed by Thomas Jefferson as a symbol of representative democracy. However the students' protest evoked an image of the Lawn as a sense of place for direct democracy. 258

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Figure 8.1 Apartheid Protest UV A Lawn (Courtesy Special Collections, University of Virginia Library) Figure 8.2 Apartheid Protest UV A Lawn (Courtesy Special Collections, University of Virginia Library) 259

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The conflict consisted of three federal court cases, two district court cases and an appellate court case. The first case was heard in the U.S. District Court for the Western District of Virginia; which found that the University of Virginia had the authority to regulate student expression on their Lawn under the time, place, and manner provisions of the Public Forum Doctrine. The court also found that the administration's regulation to restrict the shanties from the Lawn was not narrowly tailored to meet constitutional standards (Students against Apartheid Coalition v. O'Neil, 1987b ); the regulations were vague and too broad to satisfy the university's legitimate interest in aesthetics and had failed to provide students with a meaningful alternative channel for expression. Therefore, the district court acknowledged the significance of the students' being able to express their message to the intended audience in the rotunda and, subsequently, their requiring the use of the Lawn as a central place on the campus. The judge noted the similarity of the Lawn to a traditional public forum, and recognized that the student expression was intended for the university's Board of Visitors and that the Lawn was the only place on campus where the Board would see the exhibit during their meeting there The other campus places would make the expression invisible and fail to gain the attention of the Board and, therefore, were inadequate alternative outlets for the plaintiffs' expressive conduct. The University of Virginia responded to the first district court decision by creating a new lawn-use policy, which survived both judicial scrutiny in the second 260

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district court case (Students against Apartheid Coalition v. O'Neil, 1987a) and appeal by the students. The Fourth Circuit Court of Appeals upheld the new lawn-use policy because it was not unconstitutionally restrictive and it allowed communication to the community and to the Board in other open areas that surrounded the Rotunda (Students against Apartheid Coalition v. O'Neil, 1988). The district court and Fourth Circuit Court of Appeals also both acknowledged the university's purpose to maintain the Lawn's architectural and historic significance. Thus, its "purity" was maintained as long as the institution provided other campus places for student expression. The judicial interpretations of the multiple University of Virginia cases all highlighted the importance of the visibility of student expression, for fulfilling public expression, as an important aspect of the mission of a higher education institution. Nevertheless, the courts also all emphasized that the importance of individual expression did not supersede a campus's need to maintain its educational mission and to preserve the property for general use by the campus population. Auburn Alliance for Peace & Justice v. Martin ( 1988) had a similar fact pattern to the University of Utah's and University of Virginia's shantytown cases During the week of February 23 to March 1, 1987, Auburn students and faculty had sought to use the campus place known as the Open Air Forum, to congregate and camp in order to express opposition to the U.S. government's policies in Central America. Auburn University administration had imposed a time limit on use of the Open Air Forum, restricting overnight use in order to avoid disturbance to students 261

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Jiving in campus dormitories The administration allowed the Auburn Alliance group to use a sidewalk area at the Memorial Coliseum for their overnight vigil when the Open Air Forum was closed for the evening. The Memorial Coliseum area was located approximately four-hundred yards from the Open Air Forum. The Auburn Alliance group objected to the Memorial Coliseum location for overnight camp-out, because the setting had less activity, which diminished the impact of their message. They filed a federal lawsuit and presented testimony that during normal classroom hours there was more foot traffic in the area of the Forum, but that in the evening hours the Coliseum area provided more visibility to vehicle traffic near the CoJiseum site. The Auburn Alliance (1988) case opinion acknowledged that the federal courts had increased scrutiny of campus regulations on student speech. The court emphasized that attendance at a university is a privilege, yet that student status does not allow a university to prohibit speech on the basis of disagreement with a speaker or the content of a speech. The opinion stated: "This Court can think of no place that should be more hospitable to the free expression of ideas than the campus of a great university" (p. 1 076). The opinion added that speech rights on campus, while protected, are not absolute. Federal District Court Judge Truman Hobbs for the Middle District of Alabama, Eastern Division court expanded on the public forum analysis, by 262

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conducting a place assessment that distinguished the Open Air Forum from the character of the campus library: Few would suggest that a university would be forced to allow a speech or a demonstration in the reading room of the Jibrary. Such a prohibition would be reasonable because the speaker or demonstrator would interfere with the rights of others who presumably sought the reading room for quiet and reading, not speeches (p.l 077) Judge Hobbs' public forum analysis and comparison to another of the Auburn campus locations was an enlightening interpretation of the different types of campus places by form, use, and meaning. His library example is a place-forum assessment of enclosed campus places that are programmed for limited use meaning a place of specific purposes; also that such places are subject to fewer First Amendment speech protections, because they are non-public fora. Judge Hobbs affirmed that the campus administration had the authority to determine the appropriate meanings of its locations in order to regulate speech and to ensure that one s speech did not materially disrupt the educational activities create disorder on the campus or invade the rights of others to use the campus for their educational purposes. The Auburn Alliance (1988) opinion is one of the few judicial opinions contained in the legal case books that included a visual representation of the campus which was the subject of the judicial interpretation (Figure 8.3) The Auburn campus map does not provide a detailed representation of the Open Air Forum, but it does include what appears as hand drawn markers that identify the two campus places the Open Air Forum and the Memorial Coliseum sidewalk area. 263

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F"kt:tt..\.L AJJ&.'lllJtl Figure 8.3 Map of Auburn Campus (in Auburn Alliance Judicial Opinion, p. 1 080) 264

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I reviewed the Auburn campus map to identify and compare the campus locations and other visual representations to the diagram in the court's opinion. The contemporary images provide a visual text of material changes in the social development of the campus and how the administration had moved the Open Air Forum to provide visibility for student expression. The photograph below of the Open Air Forum, and the sidewalk at the Memorial Coliseum on the campus provides a visual ofthe distance between the two places (Figure 8.4). Figure 8.4 Auburn Campus Circa 1989 (Image courtesy Google Earth) 265

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Since the Auburn Alliance case concluded in 1988, a new building has been built at the former site of the Open Air Forum, and a new Open Air Forum is located next to a new campus pedestrian mall (Figure 8.6), named the Auburn University Pedestrian Concourse, created in 2002; Thatch Avenue was closed at both ends ofthe campus, converting the road into the pedestrian mall (Figure 8.7). Figure 8.5 Auburn Campus Circa 2008 (Image courtesy Google Earth) 266

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Figure 8 6 Image of Open Air Forum (Auburn Haley Center Cam) The opinions for the shantytown cases for the University of Utah (University of Utah Students Against Apartheid v. Peterson, 1986) and University of Virginia (Students against Apartheid Coalition v O'Neil, 1988), plus the peace vigil at Auburn (Auburn Alliance for Peace & Justice v. Martin, 1988), all addressed the visibility of student expression. The judicial interpretations of the campuses corresponded the definition of campus as a physical location that is viewed as an academic, social, or spiritual entity for student expression of social issues. 267

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Marches and Parades Like sidewalks, plazas, and other open areas on a campus, streets also are outdoor stages for public expression. The significance of campus streets has involved judicial interpretations of the influence of the surrounding political contexts on a campus as a type of public forum In Cerezo v. Quinones (1990), Chief Judge Juan M. Perez-Gimenez of the U.S District for Puerto Rico, enjoined the administration ofthe University of Puerto Rico at Ponce not to prevent a statehood march through its campus. Activists had sought to hold a march regarding statehood for Puerto Rico during congressional hearings on the campus. The university had proposed that the marchers walk along a street parallel to the campus, due to concerns over security at the campus. The judge reminded the campus administrators that, when balancing security and speech issues, "the right to use a public place for expressive activity may be restricted only for weighty reasons" (citing Grayned v. Rocliford, 1972). Judge Perez-Gimenez conducted a place assessment and "ocular inspection" by visiting the campus (Cerezo v. Quinones, 1990, p. 16). He determined that the dimensions of the campus grounds needing protection were not unmanageable. He also assessed that the alternate location proposed by the campus administration was not viable, because it did not provide visibility for the marchers to communicate their message to their intended audience at the campus. He acknowledged the significance of the event's location by writing that if the protestors were to hold their march at the off-campus location, "It would lose almost all its significant impact and objectives as 268

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it would be impossible for the members of the Committee to appreciate the magnitude ofthe manifestation" (Cerezo v. Quinones, 1990, p. 19). Judge Perez-Gimenez also cited, "One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other places" (quoted from Schneider v. State, 1939, p. 163). He assessed the magnitude ofthe event to take place on the higher education campus, and the surrounding political process, by evoking the words of Justice Oliver Wendell Holmes, affirming that the First Amendment prohibits government's suppression of expression because the truth can only be determined in the "marketplace" of competing ideas (quoted from Abrams v. United States, 1919, p. 630). Judge Perez-Gimenez was advocating that public expression on statehood be held on the campus street, because it was the only appropriate place that could provide visibility and reception to the congressional hearings' participants and attendees. When interpreting the location and significance of the march on the University of Puerto Rico campus, he weighed the interest of the university administrators with those of the activists. He wrote, "Because of its very nature as a university and its identification with Puerto Rico's living ideals, [the University] is essentially linked to the values and interests of every democratic community" (Cerezo v. Quinones, 1990, p. 21 ). The district court order produced a public forum that was conditioned only for the time, place, and manner of the marchers to enter and proceed along a designated route through the University of Puerto Rico campus on March 10, 269

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1990. The order was very specific and required that the parade never stop during its march through the campus, to prevent an agglomeration of people. The judge determined that the right of citizens to engage in public expression in an open democracy outweighed the government's interest in restricting the marchers from the campus from concerns over managing the streets and property. The words used by Judge Perez-Gimenez to describe the superseding political justification for the engagement of speech, symbolizing the expression of the marchers, is similar to the proportionality principle cited by Federal Judge Johnson in Williams v. Wallace (1965). Judge Perez-Gimenez had decided that the Puerto Rico statehood congressional hearings being held at the University of Puerto Rico at Ponce campus had elevated the significance of the campus as a marketplace of competing political ideas. In the context of the surrounding political debate over statehood for Puerto Rico, he interpreted the campus as a place representing the values of an open democratic society. The locations of demonstrations and marches on campuses present judges with a magnifying glass for interpreting campuses, based on the broader context of significant surrounding issues that heighten campuses as democratic places. A federal case not influenced by the surrounding political context was Sussman v. Crawford (2007). A group of anti-war protestors were seeking to express their views and visibility on the United States Military Academy at West Point. Having a higher education facility as part of a military organization is a distinct and rare type of 270

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campus in the United States. The West Point location has ceremonies that reflect both the institutional aspects of a military base and a higher education campus The plaintiffs filed a federal complaint that they had been denied access to West Point, to protest opposition to the Iraq War during a commencement address by Vice President Cheney in 2007. The group sought a court injunction that would compel West Point and its Garrison Commander to allow a demonstration by approximately 1 000 protestors within its gates, in the area known as the Cantonment. The plaintiffs had rejected an offer to conduct their demonstration at a location immediately outside the gates of the West Point grounds. In their court filing, the plaintiffs agreed that West Point was a non-public forum; however, they asserted that the commandant's actions had been unreasonable, because the Vice President's attendance and participation in the commencement ceremonies created special circumstances that elevated their First Amendment rights to express their political opinions within the confines of the West Point Cantonment. The appellate court disagreed with the plaintiffs' argument, differentiating federal military reservations from other types of place, such as municipal streets and parks that traditionally have served as places of public assembly for private citizens to communicate thoughts. The judge cited Greer ( 197 6) to affirm that the intent and mission of military installations are not altered by allowing limited public access to attend events on the military base. The court opinion stated that the power of the presence of an individual and the occurrence of an event to elevate the character of a 271

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physical location, were not determining factors in the judicial interpretation in the West Point public forum case, rejecting the notion that the presence of the U.S. Vice President elevated individual First Amendment rights in a non-public fora. The alternate situation occurred in Elend v. Basham (2006) when the Eleventh Circuit Court of Appeals upheld the dismissal of a federal complaint by three people claiming that their First Amendment rights had been violated on the University of South Florida (USF) campus during President Bush's appearance at a political rally for his brother Jeb Bush on November 22, 2002. The plaintiffs had been arrested for waving protest placards on a median adjacent to a parking lot on the USF campus near the Sun Bowl entrance, because they had failed to relocate to a "First Amendment zone" parking lot area approximately a quarter-mile from the Sun Dome. The speech zone was a fenced-off area patrolled by law enforcement (Elend v. Basham, 2006). The plaintiffs argued that individuals carrying placards and signs supporting President George Bush or Governor Jeb Bush had been allowed to stay in the area near the Sun Palace and not required to move to the zoned area. The appeals court upheld the district court decision to dismiss the case due to "standing and ripeness" grounds, because the speech restrictions were not in place after the rally ended. The court declared that it would not respond to the complaint because harm from the speech restrictions for the political rally had been temporarily imposed during the time of the rally and was no longer imminent. The court determined that the injunctive relief requested by the three individuals did not apply 272

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to a possibility of imminent harm because the event had ended and the protest restrictions on the USF campus were no longer in effect. The court also determined that there was no proof that the event would recur, because President Bush was not scheduled to visit the campus again. The court determined that the case was not "ripe," or able to be adjudicated, because the plaintiffs were not going to suffer imminent harm without judicial redress. The court also noted that the context of the broader safety issues in protecting the safety of political figures was an important factor in the judicial balancing of the scope of possibilities of injures from speech restriction compared to protecting politicians in public places. The influence of interpretations of physical places and the surrounding environments, based on the presence of a significant person or event in determining speech rights and public fora status, has shifted in contemporary court decisions. Contemporary courts have upheld the government's authority to restrict access for speech activities in traditional and designated public fora, in order to create protection zones surrounding the President of the United States, political candidates, and political events. Federal District Court Judge Marcia S. Krieger's decision to uphold speech restrictions at the Pepsi Center at the Democratic National Convention in Denver, Colorado (ACLU v City and County of Denver, 2008) is an example of a federal court upholding limitation on speech rights and protest marches at political events. 273

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Streets and Sidewalks As Campus Borders The relationship between the context of a campus and the character of its surrounding community is an important element when interpreting campus place The open accessible character of higher education campuses is an important symbolic feature of a public place. The distinction between campus property and off-campus property is, at times, an invisible border that is not physically defined. The judicial interpretation of campus places associated with surrounding non-campus places and their architectural features, was addressed in Brister v. F au Ikner (2000) and Mason v Trefny (2006). In Brister, the U.S. Court of Appeals for the Fifth Circuit conducted a place assessment of the sidewalk adjacent to the Erwin Center at the University of Texas Austin (UTA), located on a city block and surrounded by city sidewalks (Figures 8 7 and 8.8) This public forum case developed when the Austin Greens political party was denied access, by a university police officer in January 1996 to distribute leaflets and demonstrate on the easement around the Erwin Center during a reception there for delegates of the National Issues Convention. When members of the Austin Greens political party were passing out leaflets to delegates entering the Center, a number of delegates complained to a campus police officer that Green Party members were interfering with their access to the Center. The police officer approached Mr. Brister, who was distributing leaflets, and informed him that non students could not distribute leaflets on campus property that he must move to the sidewalk which was city property 274

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Figure 8. 7 Etwin Center and Surrounding Sidewalks (Image Courtesy Google Earth) 'I Figure 8.8 Etwin Center Street Level (Image Courtesy Google Earth) 275

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The police officer explained that the paved recessed area belonged to the university, while the sidewalk belonged to the City of Austin. The officer was enforcing a campus policy that prohibited distribution of literature by non-student groups. When another member of the Austin Green Party, who was a student, continued handing out leaflets on the campus, he was informed that campus also prohibited leaflets that did not identify the student or organization's name. This individual was escorted off the campus area to the city property. The legal opinion included a place assessment of the form and design of the city and campus sidewalk areas surrounding the Erwin Center: The Erwin Center is surrounded on all sides by public streets: Martin Luther King, Jr., Boulevard on the north, Fifteenth Street on the south, Interstate 35 on the east, and Red River Street on the west. The City of Austin owns a nineto twelve-foot easement along each of the center's four sides that serve as the city's public sidewalks. A portion of the university's property on the center's Red River Street side consists of a brown gravel area paved with small stones that extends from the center's public entrance out to the sidewalk. This property blends in with the city's sidewalks, and there is no physical demarcation indicating where university property ends and the city's easement begins. (p. 678) This judicial opinion distinguished the Erwin Center from the status of city by stating that the public sidewalks were a public forum, and the university grounds typically were not considered a public forum. The opinion added that the plaintiffs and the public "cannot be certain when they have entered the university's enclave, and notwithstanding the university's concerns about the intricacies of architectural design, First Amendment cases often tum on very particular facts" (p.682). 276

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The appellate court affirmed the district court s interpretation that the "unique piece of university property that is, for all constitutional purposes indistinguishable from the Austin city sidewalk is a traditional public forum" (Brister v. Faulkner, 2000 p. 683). The court however, determined that the campus police officer had been justified in requiring the plaintiffs to move from the property, because they were impermissibly blocking access to the Erwin Center. The appellate court affirmed the district court s decision that the University of Texas-Austin had not violated the plaintiffs constitutional rights. The Fifth Circuit had followed the Grace (1983) standard as the governing case to identify the importance of interpreting how architectural features demarcate place types and categorize public fora and levels of speech rights. Keith Mason was involved in the filing of another campus public forum case regarding the outer border of a higher education campus (Mason v. Trefny, 2006) In this federal complaint Mason and a colleague had been standing at the intersection of 16th and Maple Street in Golden, Colorado on Friday March 26, 2004 The location was a city sidewalk within the Colorado School of Mines campus (Figure 8.9). The two men were participating in a pro-life, anti-abortion demonstration holding signs with expressive messages on pro-life and anti-abortion as well as distributing leaflets to passersby. According to court records, neither man had obtained prior permission to use the area for their demonstration which violated a Colorado School of Mines policy that the "distribution of literature and solicitation must have prior approval 277

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from the appropriate office and distribution of items that take place within the Student Center or surrounding areas must be approved through the Office of Student Life" (Mason v. Trefny, 2006, p. 3). Figure 8.9 16th and Maple Streets Colorado School ofMines Campus (Image Courtesy Google Earth) Colorado School of Mines police officers informed Mason and O'Toole that their demonstration was in violation of campus rules and regulations. When the two men refused to stop their demonstration, they were arrested; Mason for obstruction and possible trespass, O'Toole for obstructing a peace officer. The Jefferson County District Attorney later dismissed all pending charges. The men then filed a federal 278

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complaint in the District Court of Colorado for violation of their First Amendment right of freedom of speech. U.S. District Judge Edward W. Nottingham presided over the Mason v. Trefny (2056) case on March 23, 2009. He easily identified the public forum question because all parties had agreed that the corner of 16th and Maple Streets was as traditional a public forum as any city street. The judge confirmed public forum case law that speech regulations governing the use of public fora are not per se inconsistent with civil liberties He identified that one of the principles in managing public property is the need to allocate scarce space among competing applicants to ensure public access to thoroughfares and public facilities and to allow the safety services to function. Judge Nottingham dismissed the federal complaint determining that the permitting scheme was a content neutral requirement to conduct speech activity and to distribute literature in a traditional public forum. He ruled that this requirement was constitutional, because it was narrowly tailored to serve a substantial governmental interest. Mason v. Trefeny (2006) was one of the only cases involving campus action where the place, a city sidewalk, was a traditional public forum. The court dismissed the case against the Colorado School of Mines; however the School of Mines ceased administrative control over 161h and Maple Streets The Brister (2000) and Mason v Trefeny (2006) cases are examples of the influence of the character of city sidewalks on judicial interpretation of associated 279

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campus character as traditional public fora. The public forum interpretation of a place's physical form promoted the perception that a location reasonably believed by form, use and meaning, is part of the traditional social network for communication of thoughts between citizens along city streets as the quintessential public fora. Enclosed and Interior Places The location of a place is an important factor in public forum analysis. Interior locations are identified consistently across circuits. Campus facilities and interior places are seen differently as limited or non-public fora than campus open places and plazas. The interior place-types of a campus are uniformly interpreted as non-public fora. Interior place-types are locations that are physical locations; as described in Goodsell's ( 1988) research on civic space as publicly owned property that is relatively enclosed; to fully enclosed places used for civic activity, utilitarian, and private activity. The following court cases address speech issues at campus place types that range from fully accessible libraries to private dormitories. Building Steps In Sabatini v. Reinstein (2000), during graduation ceremonies in 1999, two graduates of the Temple University Law School had distributed leaflets critical of both the Law School and the Dean of the Law School. The campus police had informed the graduates that their actions violated campus policy and escorted them to the parking lot. Sabatini filed the federal complaint, challenging the restriction on leafleting as a violation of the First Amendment freedom of speech. 280

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District Court Judge Edmund V. Ludwig, for the Eastern District for Pennsylvania, interpreted the Law School's campus locations and compared the steps to the sidewalks in Kokinda v. United States (1990), stating, "While the steps adjoining McGonigle Hall and the Apollo are not restricted to the public, their sole purpose is to provide access to these buildings" (p. 4). He determined that the building steps were non-public fora, and concluded that the Temple University restrictions on leafleting on the building steps had not violated the Public Forum Doctrine, because it was a reasonable, content neutral regulation relating to the use of its property and consistent with its academic mission. Dormitories College dormitory rooms are a unique type of place on a higher education campus. As a residential location, a dormitory room is a campus place that embodies the major elements of private property. Dormitory rooms are enclosed personal places for students, with restricted access for non-residents. The judicial interpretations of dormitories as non-public fora are a consistent place-assessment across federal circuits. The following three court cases all addressed access to dormitories as an extension of publicforum expression. In 1984, the Appeals Court for the Third Circuit examined commercial vendors accessing dormitory residents at public higher education campuses in American Future Sys. v. Pennsylvania State Univ. The appellate court wrote that the public-forum analytic framework did not easily apply to dormitories because they 281

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have the characteristics of both public and non-public fora. The judicial interpretation in this case was confounded by the public forum analysis of dormitories, since dormitories serve as residential housing for educational purposes and are places where students have a degree of personal freedom and privacy. The court assessed that a campus is a place of many different types of student perspective: For the students, however, not only do the dormitories resemble public forums, but the university campus resembles society at large Most students at a large public university like Penn State spend most of their time immersed in a world dedicated to the purpose of their education. They live in a dormitory, travel to and from classes on campus, listen to the college radio station, and read college newspapers. The government owns all of the property related to the students' world, yet the students must be able to exchange ideas and information, including commercial information, somewhere on this property unencumbered by university restrictions; hence, their interest in doing so in their own rooms is enhanced. As in the case of public parks, therefore, one important use of dormitory rooms is as a forum for speech uninhibited by governmental interference-at least when such speech is desired by the students. (American Future Sys. v. Pennsylvania State Univ. 1984, p.864) The court found that dormitories are non-public fora to outsiders, providing some type of forum for expression among student residents. Even so, the court found that as a public university as well as a property owner of a residential facility and an educational institution, Penn State had a significant interest in carrying out its educational mission. This interest necessarily gave the university power to regulate the students' lives, and the court determined that Penn State had a significant interest in maintaining the dormitories as residential and study areas. Therefore, these places were of substantial interest in supporting the university's educational mission. 282

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In a similar dormitory case, Chapman v. Thomas ( 1984), the Fourth Circuit Court of Appeals held that North Carolina State University dormitories were non public fora because dormitories are not by tradition or designation constituted to be a public forum for communicative purposes. Four years later, in Fox v. Board of Trustees (1988), the Court of Appeals for the Second Circuit reviewed the regulation on students' rights to receive information and hear speech in their dormitory rooms. The court determined that students do not lose their First Amendment rights while on campus, especially students required to live on campus. The court recognized that a university must respect that the constitutional rights of students living on campus are the same as when they are off-campus, except when the university can show that those rights materially will disrupt the educational mission. The judicial interpretation in all three of these cases reached the same conclusion. The Second, Third, and Fourth Appellate Courts determined that campus dormitories are non-public fora and are not traditional or designated public forum, because the place-type is not open for public use or has a history as a public forum for private expression. Display Cases and Bulletin Boards Interior posting boards and display cases are generic types of communication in both the interiors and exteriors of higher education facilities. I found two cases addressing the regulation of speech in these types of physical locations. In Burnham v. Ianni (1997), decided in the U.S. Court of Appeals for The Eighth Circuit, the 283

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academic department's display case at the University of Minnesota-Duluth campus was the subject of public forum analysis. Two students in the History Club had created an exhibit of photographs and information about interests of professors in the history department. All the professors had agreed to provide information about their fields of expertise, to supply and pose with a "prop" representing their various "areas of interest" and to be portrayed "in an informal, somewhat humorous way" (p. 670). The photographs and information were placed in the history department's display case on March 27, 1992, located in a public hallway next to the history department's classrooms. In the weeks following, the display of nine photographs of different professors was viewed by thousands of students, staff, and faculty. The constitutional conflict emerged over two of the photographs when on April 10, 1992, the university's police chief and an affirmative action officer went to view the display, in response to a complaint about photographs of professors holding weapons. The two officers demanded removal of the photographs of two professors. In one of the photographs, Professor Albert Burnham is holding a .45 caliber military pistol and wearing a coonskin cap, representing his interest in American military history, John Adams, and Davy Crockett. The other photograph was of Professor Ronald Marchese holding an ancient Roman short sword, while wearing a cardboard laurel wreath, representing his interest in Ancient Greece and Rome, Homeric Literature, Homer, and Alexander the Great. The chair of the history department and the professors all refused to remove the photographs from the display case. The 284

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photographs subsequently were removed by a campus police officer on May 5, 1992, under order from University of Minnesota-Duluth Chancellor Ianni. The two professors and two students subsequently filed a federal complaint under 42 U .S.C. 1983 action, alleging First Amendment violations against Chancellor Ianni and the University of Minnesota. After Chancellor Ianni appealed the district court decision, the U.S. Court of Appeals for the Eighth Circuit heard the case and found that Chancellor Ianni's actions had violated the plaintiffs' clearly established First Amendment rights, in a way that an objective university chancellor would have known. Chancellor Ianni claimed he was protected by qualified immunity because the plaintiffs' First Amendment rights had not been clearly established when the photographs were removed from the case. The appeals court conducted a forum analysis, using the Perry (1983) categories to interpret the display case as a limited public forum; and the court disagreed with Ianni's assertion that the public fora law had not been established: The display case was designated for precisely the type of activity for which the Kohns and Professors Burnham and Marchese were using it. It was intended to inform students, faculty and community members of events in and interests of the history department. The University was not obligated to create the display case, nor did it have to open the case for use by history department faculty and students. However, once it chose to open the case, it was prevented from unreasonably distinguishing among the types of speech it would allow within the forum. (p.676) This appellate opinion cited Widmar (1981), to reinforce public forum case law on restrictions against discriminating against expression in a limited public 285

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forum. Because the purpose of this case was the dissemination of infonnation about the history department, the suppression of exactly that type of infonnation simply was not reasonable. The court held that Ianni's suppression of the students and professors' expressions was not a constitutionally valid reason even in a non-public forum. This judicial opinion also critiqued Ianni's actions, noting that a reasonably objective university chancellor would have known that his conduct had violated the plaintiffs' constitutional rights. The appellate court admonished Ianni that, once a controlling opinion had been decided, a constitutional right clearly had been established. Several years later the U.S. Court of Appeals for The Ninth Circuit conducted a public forum analysis regarding a bulletin board at the Montana State University campus (Giebel v. Sylvester, 2001) Dr. Stephen Sylvester, chainnan of an academic department, had removed posters from the campus bulletin boards, which advertised a speech by a fanner member of the staff, Douglas Giebel. The appellate court interpreted the bulletin board as a designated public forum because the campus had allowed the public unregulated access to the bulletin board to post infonnation and communications to the campus community. Judge Reinhardt, writing the majority opinion held that the handbills had communicated infonnation as protected speech and a common sense fundamental principle in public forum jurisprudence: Both common sense and closely analogous case law lead us to conclude that it was clearly established long before 1996 that Giebel s handbills were a fonn of speech protected by the First Amendment. Since the earliest days of the Republic, it has been understood that infonnation conveyed in hand bills on matters of public interest is speech within the ambit of First Amendment protection. For those 286

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without the resources to purchase advertisements in newspapers or time on television, the handbill has been an indispensable means of informing the public of upcoming public events, including discussions of important issues. (p. 1188-1189) These appellate courts' opinions provided insight into place analysis and public forum distinctions between a department display case and a public bulletin board. Both items had a similar form as wall-mounted fixtures in academic buildings. The difference was that the departmental display case, while used to provide information to the public, was also used for administrative purposes. Whereas, bulletin boards are not restricted solely to administrative use as they are erected to provide individuals a forum to communicate information to the general public. Television Stations and Theaters Campus-owned and -operated media facilities also have been subject to public forum analysis. The U.S. District Court for the Western District of Texas interpreted that the University of Houston's government-owned and operated TV station KUHTTV was a public forum (Barns tone v. University of Houston). In 1986, the District Court for Nebraska interpreted the University of Nebraska's Sheldon Film Theater as a non-public forum. However, the court determined that the intervention to stop the presentation of a movie in the university theater, by a member of the Board of Regents, was unconstitutional because the action was not a reasonable governmental action (Brown v. Board of Regents, 1986). 287

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Meeting Rooms, Libraries, and Classrooms Campuses contain many types of places that are accessible to the public, yet are not specifically identified as places for speech expression. For example, Hickok v. Orange County Community College (2006) was a conflict over removing an audience member at a presentation because the person would not stop questioning the speaker during the lecture at the Orange County Community College in 2006. Judge Stephen C. Robinson for the District Court for the Southern District ofNew York was presented with a constitutional question on the speech rights of individuals attending a lecture opened to the public. He interpreted the lecture hall as a limited public forum, based on his assessment of the primary purpose of the campus place. He reinforced the legal concept, in the Fourth Circuit, that the campus of a public university is a limited public forum because the governmental intent is to reserve the location for a narrow range of uses and purposes. In Galiano v Inst. ofGovernmental Studies at the Univ. of Cal (2008), a similar type of decision was based on the judicial interpretation of the purpose of a library as a campus place-type. The Ninth Circuit Court of Appeals upheld a district court decision that interpreted the library on the University of California Berkeley campus as a limited public forum. This court recognized that the limited public forum is a subcategory of the designated public forum, wherein the government opens a non-public forum, but reserves access for only certain groups or categories of speech (Galiano v. lnst. of Governmental Studies at the Univ ofCal, 2008). The court's 288

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interpretation in this case is compatible with the judicial interpretations of the library's character in the Auburn Alliance (1988) case as a place with a specific use and meaning for research and a place for quiet study, not speeches. In Smith, et al. v. Tarrant County College Dist. (2010) in the United States District Court for the Northern District of Texas, the classroom as an interior place type was subject to public forum analysis The issue was whether the display of an empty holster in a classroom was protected speech. Two college students, Clayton Smith and John Schwertz Jr., were seeking to wear openly empty gun holsters and t shirts depicting empty holsters. Further, they were distributing pamphlets to protest the Tarrant County College (TCC) ban on wearing a concealed weapon on campus. Their protest was to occur on November 9, 2009, in conjunction with campus demonstrations across the county. They filed a federal complaint to prevent a TCC policy that would restrict their protest to the campus's free speech zones and prevent them from entering classrooms while wearing an empty holster. In his opinion U.S. District Judge Terry R. Means cited three Fifth Circuit Texas District court cases to describe the public forum analysis process. He interpreted the campus sidewalks and plazas as public fora, and the classroom as a non-public forum. He cautioned that the classroom, as a closed area, conveyed a different message and served as a different context than the outdoor areas for the empty holster protest attire, noting the sensitive nature of weapons in classrooms due to recent classroom shootings across the county. The TCC administration argued that 289

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they needed to prevent students from wearing the empty holsters into classrooms, to avoid disruption and possible confrontations between students. Judge Means concluded that the campus administration's speculation that the students wearing empty holsters into classrooms would cause a disruption was not a reasonable action to justify pre-empting the students' speech in a non-public forum. He stated that the administration's restriction on speech did not sufficiently overcome the students' freedom of expression rights. He compared wearing the empty holsters to wearing t-shirts or buttons containing a political message, as non-verbal expression that is protected speech even in a non-public forum. Judge Means explained that constitutional restrictions on speech were upheld based on evidence that the "nature of the speech and the environment in which it is to occur are such that a disturbance is more than a mere expectation" (p. 15). He stated, "Controversial symbolic speech, with the potential to evoke a strong and possibly violent emotional response from those who see it has time and again been held protected, even in non-public forums, including the classroom" (p. 15) The judges in these three cases conducted place-typing assessments of the interior places in order to identify the locations' singular operational purposes. The nonpublic forum classification was applied based on the meaning of each place and how it was programmed for specific purposes that supported operation of the campus. Each campus administration's actions of removing disruptive individuals from lectures and libraries were not, per se, unconstitutional restriction on speech if the 290

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actions reasonably preserved the nature and purpose of the campus place. However, Smith eta/. v Tarrant County College Dist (2010) is an example where campus administrators had to identify how the speech actually would disrupt the non-public forum, in order to constitutionally restrict the speech activity. The Campus As a Public Forum for Student Expression The judicial interpretation of campus place is an assessment that reveals what Strange and Banning (200 1) described in their campus ecology model as a "dynamic relationship between students and the campus environment as mutually shaping forces in the complex balance of institutional life" (p. 295). Over time, sophistication of the judicial interpretation of campus place began to focus on specific locations on campuses, as a micro analysis of campus place as a public-fora category. The University of Houston's (UH)) Anne Garrett Butler Plaza is typical of a campus place shaped by speech conflict between student autonomy and school authority. This conflict emerged on the campus in 2002 when a group of UH students was denied use ofthe Butler Plaza grassy area for the Justice for All (JF A) pro-life exhibit on November 5-8, 2001. The exhibit was described in the judicial opinion: The exhibit was described as an outdoor photographic educational exhibit, presented on panels made of tough vinyl, braced with aluminum pipe, and weighted down with sandbags that require no digging or pegs being driven into the ground. In addition, the exhibit contained eight, two-sided signs, approximately 3 feet by 4 feet in size. The purpose of the exhibit, as described in Plaintiffs' event forms, was to promote "justice and the right to life for the unborn, the disabled, the infirm, the aged, and all vulnerable people; [to] help women and men in crisis pregnancies find support services for themselves and for their unborn children; [to promote] programs designed to assist in 291

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abortion recovery needs; [and to promote] discussion of related bio ethical issues like stem cell research, in vitro-fertilization, RU 486, and 'emergency contraception."' (p. 578). The same JF A exhibit, sponsored by a different student group, had been approved for display in Butler Plaza for three consecutive days during March 2001. The UH administration had received complaints from campus members concerning the JF A March exhibit. In response, the administration had created a new policy toward reserving campus places for student events, with specific provisions denying use of the Butler Plaza for potentially disruptive speech activity. Thus, the UH Dean of Students' office denied Pro-Life Cougars use ofthe Butler Plaza, but offered them use of the University Center Patio or Lynn Eusan Park (Figures 8.10 and 8.11 ). ProLife Cougars considered the University Center Patio "too small" and the Lynn Eusan Park "too far removed" from the part of the campus where students congregated, plus it was obscured from view by trees (p. 578). The Pro-Life Cougars were granted an injunction in U.S. District Court for the Southern District of Texas, Houston Division Court, prohibiting the University of Houston from enforcing their disruptive speech policy on June 24, 2002. The Pro-Life Cougars continued to pursue their federal complaint, addressing the actions of the UH speech policy as a prior restraint on speech, which had allowed the Dean of Students an unfettered discretion to enforce the policy by determining that a speech activity was disruptive. 292

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Figure 8.10 Aerial View University of Houston (Photograph Courtesy Google Earth) The Pro-Life Cougars case was heard by District Court Judge Ewing Werlein, Jr., who examined the University of Houston's physical design and the associated meanings of Butler Plaza as a social gathering place, interpreting it as a designated public forum. He conducted the following place assessment; reflecting the importance of examining the multiple definition and dimensions of the campus to determine public forum classification: The University is a large state university with its main campus within a few miles of downtown Houston. On the campus are many streets, parking facilities, sidewalks and walkways, various stadiums and sports arenas, theaters, bookstores, convenience stores, some 25 restaurants, a Hilton Hotel, and numerous park-like plazas, nearly all 293

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of which facilities are open and accessible not only to students and faculty but also to the general public. Approximately 3 000 students live on campus in six resident dormitories. Within the University is Butler Plaza, a plaza that is approximately four acres in size and is centrally located on the University main campus. (p 582) Figure 8.11 Aerial View University of Houston (Photograph Courtesy Google Earth) Judge Werlein ruled that Butler Plaza was a public forum designated for student speech: "When as here, a University by policy and practice opens up an area for indiscriminate use by the general public, or by some segment of the public, such as student organizations, such area may be deemed to be a designated public forum" (p. 582). He applied the "strict scrutiny standard of review" for the UH speech policies on student expressive activity in Butler Plaza, determining that the university's restrictions on Butler Plaza had exceeded the university's institutional 294

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authority (Pro-Life Cougars v. University of Houston, 2003). He emphasized that the campus was a place of many different place-types and a variety of public fora. Another federal case involving a public forum conflict at a Texas university was Roberts v Haragan (2004). The conflict involved a speech policy at Texas Tech University, which required students to use a designated free-speech area for unscheduled speech activities, a gazebo near the student union building Students who wanted to use other campus places for their speech activity had to request another campus site from the University's Center for Campus Life. Jason Roberts, a Texas Tech law student, was seeking to express his views against homosexuality. He submitted a "Grounds Use Request" on May 23, 2003 to speak on June 5, 2003. He requested to schedule his speech across the street from the student union at the comer of 15th Street and Akron a major entrance to the Texas Tech campus (Figures 8. 12 and 8.13). The administration granted his request regarding the time and manner of his speech activity. He received an email from the Center for Student Life representative: The use of University grounds, as stated in the University policy, is encouraged for activities which are intended to serve or benefit the entire University community. It is the view of the committee that your request is the expression of a personal belief and thus, is something more appropriate for the free speech area which is the Gazebo area located near the comer of 15th Street and Boston. (p. 856-857) Roberts appealed the decision and was allowed to use a place approximately twenty feet from the campus entrance. The location was selected by Texas Tech to provide Roberts a location near the campus entrance that would allow for both traffic 295

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and personal safety. He initially accepted the counter location, but decided not to hold his speech activity on the requested date due to personal matters. Figure 8.12 Texas Tech Campus (Aerial Image courtesy Google Earth) Roberts ultimately filed a lawsuit against Texas Tech on June 12, 2003, for violating his constitutional First Amendment rights by regulating where on the campus he could express his religious and political views. The campus administration countered in a court filing that, in its entirety, the campus was a limited public forum, in which the administration could impose reasonable time, place, and manner restrictions on speech. In August 2003, Texas Tech amended its campus policy for regulating speech. 296

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Figure 8.13 Texas Tech Campus (Aerial Image courtesy Google Earth) U.S. District Judge Sam R. Cummings, for the Northern District of Texas, reviewed both arguments, to determine how each side of the conflict had interpreted the campus. He was not convinced by the Texas Tech argument that the campus was a limited public forum simply because it was a location that limited scheduling of campus places for speech activities, writing, "Park areas, sidewalks, streets, or other similar common areas, these areas are public forums, at least for the University's students, irrespective of whether the University has so designated them or not" (p. 861). He ruled that moving Roberts' requested speech location away from the entrance was a legitimate, viewpoint neutral action that was narrowly tailored to meet 297

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a significant concern for safety. However, he also determined that Texas Tech's new interim policy that required prior permission to engage in expressive speech at campus places burdened speech beyond necessary levels and exceeded the administration's constitutional authority. Judge Cummings' opinion is an example of judicial interpretation that a campus is not a single place but is comprised of a variety of place-types that are available for student expression. In Justice for All v. Faulkner (2005), the University of Texas at Austin (UTA) was the site of a debate over a campus literature policy requiring all printed materials distributed on campus to bear the name of a university affiliated person or organization responsible for the distribution. The student group Justice for All (JF A), a student anti-abortion group at the campus was seeking to schedule a campus site to host a 5,600 square-foot photographic exhibit on the UTA Main Plaza in December 2000 and February 2001. The university denied JF A's request to use the Main Plaza for either request, but allowed JF A to erect the exhibit elsewhere on campus on the requested dates. The primary speech dispute arose when university officials prohibited JF A members from distributing leaflets containing the statement "Life is BeautifulChoose Life" during one of the displays at UTA. The campus administrators claimed that the distribution ofthe leaflets were stopped because JFA's affiliation was not identified on the leaflets, in violation of the university's literature policy requiring that "all literature distributed on campus must identify the University person or 298

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organization responsible for its distribution" (pp 764-765). The literature policy was based on a University of Texas Regent's rule that prohibited and punished the circulations of anonymous publications on any University of Texas campus. In 2004, JF A filed a federal complaint in the U.S. District Court for the Western District of Texas, alleging that the literature policy unconstitutionally restricted anonymous speech within a designated public forum. The university replied that the literature policy was necessary to preserve use of the campus and to prevent littering on campus. The district court agreed with JF A's claim, in part holding that, as public campuses are designated public fora for student expression, the literature policy was not narrowly tailored to serve a significant state interest. The district court granted summary judgment, in part, for JF A, and permanently enjoined the university from enforcing the literature policy provision that had prohibited individuals from engaging in anonymous leafleting. The district court, however, dismissed JFA 's claims against UTA's rules regarding erection of stationary exhibits on campus. UTA appealed the district court's decision, claiming that the campus was a limited public forum and that any other interpretation would "render the campus the equivalent of a public park" in the regulation of speech (p. 766). The appeal did not contain any references to littering on campus. Instead, UTA argued that the literature policy was necessary to preserve the campus for use by students, faculty and staff, by ensuring that literature was not distributed by non-affiliated individuals and groups (Justice for All v. Faulkner 2005). 299

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The Fifth Circuit Court of Appeals determined that the UTA campus was not one type of public forum, but was made up of a multitude of places subject to interpretation as public fora. The appeals court dismissed the university's argument that an adverse holding by the court would "throw open the gates of the campus to any type of speech by any speaker" (p. 767). The court asserted that their decision addressed only whether the outdoor open areas of the campus, which were accessible to students, were generally designated as public fora for student expression. The Court of Appeals stated that the Fifth Circuit recognized the traditional, non-public, and designated categories of public fora, and affirmed: Restrictions on speech in traditional public forums, such as streets and parks, receive the strictest scrutiny. Restrictions in non-public forums, such as military installations, receive the most forgiving. The campus of the University of Texas at Austin, however, fits neither category. It falls instead within the middle category, broadly referred to as "designated" public forums. In recent years, the Supreme Court has made it clear that this middle category is further divided into two discrete types of forum: true "designated" forums and "limited" forums. The distinction is critical in this case, because restrictions on speech in a designated forum are subject to strict scrutiny, whereas such restrictions in a limited forum are reviewed under a less demanding standard for "reasonableness." (pp.765-766) The appellate court held the University of Texas-Austin had engaged in an intentional act by designating outdoor open areas, such as plazas and sidewalks of its campus, as a public forum for student speech. The judicial opinion stated that the "university, through its own policies, has designated the outdoor open areas of its campus generally accessible to students-such as plazas and sidewalks-as public forums for student speech" (769). The court evaluated the literature policy to 300

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determine whether the anonymity restriction was constitutional in a designated public forum. The court determined: In sum, we reiterate that, where the government designates a forum for use by a given class of speaker, it is nearly inevitable that those who wish to make use of the forum will be required to sacrifice some measure of anonymity. The Literature Policy's requirement that speakers identify themselves to every person who receives their message, however sacrifices far more anonymity than is necessary to effectively preserve the campus forum for its intended beneficiaries. As such, the Literature Policy is not narrowly tailored to a significant government interest, and thus, is invalid under the First Amendment. Accordingly, the judgment of the district court is affirmed in this respect. (p. 772) The Justice for All v. Faulkner (2005) case is an example of the Fifth Circuits holding that the limited public forum category is a subset of the designated public fora. The designated and limited public-fora category distinction is not uniform in all federal circuits, based on the different judicial interpretations of campus place as public forum category. In Rock for Life-UMBC v. Hrabowski (2009), the U.S District Court for the District of Maryland addressed another student group seeking broad visibility in the campus open space. The Rock for Life student group at the University of Maryland Baltimore County (UMBC) campus was seeking to schedule a place on campus to display posters and panels from a traveling pro-life photo mural display during April and November 2007 and October 2008 The court opinion cited court records describing the poster display as part of a pro-life advocacy program known as the Genocide Awareness Project (GAP). The GAP display was comprised of twenty-four 301

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signs measured four-feet-by-eight-feet, and distributed by the Center for Bio-Ethical Reform. The display compared contemporary genocide of abortion to historically recognized forms of genocide. Required by university policy to schedule a place to erect the display, the students selected the University Center Plaza to maximize visibility of the display to students and faculty. Once the campus administration was aware of the display they determined it was too large for the University Center Plaza, because it would block access to and from buildings. The administration rescinded permission to use the Center Plaza location and rescheduled the display for the Commons Terrace. Rock for Life members accepted the location change as an appropriate site because it was located in an area of large student pedestrian traffic On the day of the event, the location for the Rock for Life display was again moved by UMBC administration, over concern that the Commons Terrace location would cause disruption to use of the area. On April30, 2007, the administration relocated the Rock for Life event to the North Lawn, an area north of the Commons building The Rock for Life group was opposed to moving their event to this location, believing the place could not reach a sufficiently large audience compared to the Commons Terrace. Images of these three locations are in the photographs of the UMBC campus (Figure 8 14). 302

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Figure 8.14 UMBC Campus (Aerial Photograph courtesy Google Earth) The Rock for Life filed a federal complaint in the U.S. District Court for the District of Maryland, deciding that the continual relocation of their exhibit was an attempt to suppress their speech. Members complained that the UMBC administration had established unreasonable time, place, and manner speech restrictions on the group's attempt to exercise its constitutional rights on campus. In October 2008, the Rock for Life group requested and was granted use of the Commons Terrace; however, in the court case, the group claimed that the UMBC had denied them use of the Commons Terrace based on the content of the posters. 303

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District Court Judge J. Frederick Motz heard the case and applied a public forum analysis, relying heavily on the ACLU v. Mote (2005) opinion, which is discussed in a subsequent section, "Off-Campus Speakers." Citing ACLU v. Mote (2005), the judge identified three categories of public fora: traditional public forum, non-public forum, and limited public forum. He clarified that the limited public forum category is also called a designated public forum. He held that under the Fourth Circuit legal standards, the UMBC's policy clearly had created a limited public forum for the campus. He disagreed with the Rock for Life's assertion that the UMBC administration had moved the displays because of the content of the posters. He determined that the UMBC action in moving the display had not unconstitutionally restricted speech on the UMBC campus: I find as a matter of law that Defendants' actions in this case were narrowly tailored to serve UMBC's significant interests. Plaintiffs were not excluded from delivering their protected speech on the UMBC campus at the time and manner of their choosing. Plaintiffs were only restricted from presenting their large exhibit in their preferred location on campus, but were permitted to present the exhibit at another location, the North Lawn, where Plaintiffs would still have access to their intended audience, but where Defendants' size and safety concerns would be alleviated. Defendants' actions in relocating the display were directly related to protecting their interests in safety, visibility, and security. (p. 748) Judge Mortz's interpretation of the UMBC campus as a limited public forum allowed the authority of the campus administration to decide the most suitable places for campus expression for safety and managerial concerns. This interpretation of campus authority granted campus administrations constitutional authority to conclude 304

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where and how campus place-types are used within a content-neutral time place and manner standard of the Public Forum Doctrine. Campus administrations' authority to assign campus places for speech activities also was challenged in ASU Students for Life v. Crow (2009), a case heard in the U.S. District Court for the District of Arizona. The constitutional question involved the authority of campus administrators to determine the location and regulation of scheduling speech activities at Arizona State University (ASU) campus place-types. The ASU administration had established forty outdoor spaces as zones that were available for reservation by student organizations. Several of the outdoor zones were formed when several roads were removed from the ASU campus and converted into walkways and plazas. On December 1, 2005 ASU Students for Life sought to reserve sixteen outdoor zones on the campus. They contacted the ASU Event and Meeting Services office to schedule multiple zones to host a display of the Justice for All (JF A) pro-life exhibit for four consecutive days in February 2006. The group initially was denied the multiple-zone requests because ASU had an unwritten policy to allow groups to reserve only one zone for an event. The group also was informed that off-campus groups were required to pay a fee and have insurance to use the campus for an event. JF A was later allowed to use multiple zones for the event, and obtained an insurance rider as required by ASU for off-campus vendors. 305

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Then in March 2006 the ASU Students for Life contacted the Event and Meeting Services office to reserve multiple zones for informational tables around the campus from April 17 to 21, 2006 for an event called "Dignity of Life Week." The JF A also requested that the off-campus organization "Silent No More" have information tables next to their own tables The JF A was informed that ASU polices on one-zone reservation and insurance were still required to reserve campus zones. The ASU Students for Life filed a federal complaint on July 21, 2006, alleging that ASU had violated the Free Speech Clause of the First Amendment and the Due Process and Equal Protection Clauses ofthe Fourteenth Amendment. JFA asserted that ASU's unwritten one-zone policy and policy on vendor fees and insurance had violated their speech rights. U.S. District Judge Mary H. Murguia interpreted the Arizona State University's facilities-use policy, determining that the outdoor zones on the ASU campus were limited public fora. Examining the ASU policies, she determined that the campus administration had not intended to open its outdoor zones for indiscriminate use by student organizations nor the general public. She determined that ASU's insurance and one-zone requirements had not violated the Students for Life' First Amendment rights, because the policies were both content and viewpoint-neutral and reasonable in light of the purpose served by ASU's designated outdoor zones. The place assessments of campuses, as places for students, identify how judges interpret campus space as public fora, based on the people that use the place as 306

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well as the shape and use of the place. This research clearly shows that the courts support administrative authority to manage campus place under the time place and manner provisions of the Public Forum Doctrine; yet the courts also recognize that campus is a representational place for students to establish individual and social identity. The judicial interpretations of contemporary campus place as public fora are influenced by the meaning of campus as a type of place. Judicial interpretation is a place-typing assessment that establishes a constitutional unity between the speech rights of students in the imaginal marketplace of ideas and the material campus as a physical location The campus as a representational place for students is the dominate meaning in the court's contemporary interpretation of campus. The campus is a designated public fora that is directly lived through the associations of images and symbols by students as the on-campus users and inhabitants of the campus. The Campus As a Forum for Off-Campus Speakers The use of campus places for speech activity involves not only the constitutional challenges of where speech activities occur on a campus, but also who has access to the campus for speech activity. The previous section focused on campus cases involving students. This section addresses court cases involving judicial interpretations of campus place when off-campus individuals are seeking use of campus place for speech activity. 307

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In Spartacus Youth League v. Board ofTrustees (1980), the U.S. District Court for Northern Illinois was presented with a case to interpret the walkways on the University of Illinois Circle Center campus as public fora for use by "on" and "off' campus groups and speakers. In 1975, the university had promulgated a goods and literature distribution regulation that only allowed students, faculty, and staff to distribute free printed materials on campus. The policy limited these distributions to a small area on campus. The policy also required that the literature contain the name of the issuer and that the person distributing the material provide identification upon request by campus staff members. The conflict began in the fall of 1977 when Sandor John, a non-student member of Spartacus Youth League (SYL ), visited the campus to distribute literature. A registered student organization with less than ten student members, the SYL maintained a booth at the Circle Center, which was the campus student union, identified in the student handbook as "the hub of campus activities" (p. 792). From the booth, the SYL group distributed political literature on Marxism and the Worker Vanguard, a Marxist working-class newspaper. SYL asked for contributions for the literature, and distributed literature on campus walkways within the Circle Campus. On several occasions in the fall of 1977, Sandor John was informed that he could not distribute SYL political literature on the campus because he was not a student, faculty, or staff member ofthe university. The critical incident occurred on November 22, 1977, when two Circle Campus officials again informed John that he 308

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had to stop distributing newspapers on the second floor of the Circle Center. After he refused to stop distributing the literature, claiming the policy violated his constitutional rights of freedom of speech, he was arrested for trespass. The criminal charges were dropped because the court found the distribution regulations unconstitutional. John and other plaintiffs subsequently filed a motion on April 1978 in the U.S. District Court for Northern Illinois, seeking a preliminary injunction on the distribution regulation. Prior to the district court's decision, on December 19, 1978, the University of Illinois amended their regulations to permit distribution ofliterature by non-campus members when distributing literature on behalf of a registered student organization. John and additional plaintiffs subsequently filed a federal and amended complaint on May 21, 1979. The amendment asserted that the distribution regulations unconstitutionally had discriminated between "speakers based upon their status as University insiders or outsiders" because the Circle Center and the outdoor walkways were public fora (p. 795). The district court conducted a case law analysis of the Public Forum Doctrine to interpret the character of the campus as a place of communicative activity. The court stated the process of interpreting campus character: In a series of cases, the Supreme Court has determined that citizens have a constitutional right to use certain governmental property as public forums. That label signifies a special constitutional status prohibiting the state from regulating speech related conduct in such places except by reasonable, nondiscriminatory regulations governing time, place and manner. Once those regulations are shown to impinge 309

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upon First Amendment interests, the burden is on the state to demonstrate that the regulations are necessary to serve compelling governmental interests. In determining whether an area is a public forum, courts have looked at the character of the place its usual activities and whether its historic dedication has been to the exercise of First Amendment rights. Courts have also sought to determine whether the manner of expression is compatible with the normal activity of a particular place at a particular time. Using these criteria, streets, parks and sidewalks have been found to constitute public forums. (p. 798) The district court examined the function of a public campus to determine that, although a public campus is not created mainly for public interchange, the location is an important place for a broad range of communication activities. The district court held that the peaceful distribution of literature was compatible with other types of protected First Amendment speech activities being expressed at the Circle Center. This Spartacus opinion identified the Circle Center and walkways on the campus as types of places where the peaceful distribution of literature was compatible with the normal activity of the student union. The court's interpretation of the open form ofthe campus indicated that the place was accessible for off-campus individuals to engage in expressive activity at the campus, as long as the activity did not interfere with the educational mission of the campus. The district court interpreted that the Circle Center was a public forum because the area served as the hub of campus activities. The court wrote: "The college campus is a peculiarly fertile environment for the exchange and dissemination of ideas" (p. 798). The authority of the campus administrators to impose time, place, 310

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and manner restrictions on other types of public forum had not lessened or negated the quality of the campus as a public forum (Spartacus Youth League v. Board of Trustees, 1980). Spartacus was decided in 1980 before the U.S. Supreme Court's creation of multiple public forum categories in Perry (1983). The Perry public forum categories provided judges with a broader set of analytical tools to interpret "campus place," as physical location, and the status of speakers, to determine their place on campus. The courts had been confronted with multiple questions on the complexity of different types of campus places, people, and purposes that correspond to different public forum categories. Since Perry, judges have had a wider range of public forum categories to distinguish types of campus place and types of people that seek to use places for expression. The next two sections discuss the judicial interpretations of public forum categories when off-campus speakers request to use higher education campuses for individual expression. Designated Public Forum for Off-Campus Speakers The U .S. Court of Appeals for The Ninth Circuit released a decision in Orin v. Barclay (2001), involving the Olympia Community College (OCC) campus in Bremerton, Washington. Non-students Benjamin Orin and his group, Positively Pro Life, had arrived on the campus to stage an anti-abortion protest on OCC s main Quad. They met with Richard Barclay, the interim dean of students, and informed him that they sought to use the campus Quad for their pro-life demonstration. They 311

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warned him that the protest included the display of two large posters that graphically depicted aborted fetuses in various states of dismemberment, and that the signs had elicited strong responses at prior protests, including physical violence Barclay had waived the OCC requirement to obtain a written permit, and gave the group oral permission to use the Quad, with the conditions that Orin and his group not create a disturbance, interfere with students' access to school buildings nor couch the protest using overtly religious terms. The next four factious hours at the Quad were described in this judicial opinion: The Dean's Office began receiving student complaints about the protestors and their posters soon after the protest began. OCC accommodated the demonstration for approximately four hours. The size and temperament of the crowd attracted by the demonstration waxed and waned. At times there were only five or six students ; at other times there were more than one hundred. On two occasions campus security had to interpose themselves between the crowd and the protestors to avert physical violence. (p. 1212) Barclay visited the Quad and, concerned over the crowd's response to the demonstration, instructed OCC campus security to tell Orin to leave the campus because he was violating Barclay's conditions for using the Quad Orin and his group refused to leave and were arrested by police officers from the City of Bremerton for criminal trespass and failure to disperse (Orin v. Barclay, 2001 ). Orin ultimately filed a federal complaint that the actions by the OCC staff and Bremerton Police Department had violated his constitutional rights. After the District Court for Washington granted summary judgment to the OCC campus, finding its actions had not violated Orin's constitutional rights, Orin 312

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appealed the case to the Ninth Circuit of Court of Appeal. The appellate court determined that Barclay's action of allowing Orin's group to use the Quad had designated that location as a public forum. The appeals opinion determined that the conditions to refrain from creating a disturbance and interfering with campus activities and access to school buildings were justified constitutional restraints on speech The appellate court cited both Healy (1972) and Widmar (1981 ), to establish that OCC campus officials could impose restrictions on use of the facility and rules to prevent interference with the educational mission of the campus. However the appellate court found Barclay's third condition, to refrain from religious activity and expression, unconstitutional content-based restriction of speech, based on the category of public forum. The case was remanded back to the district court for a trial with the OCC staff as defendants. The judicial interpretation of campus place as designated public fora creates unconstitutional restrictions on campus regulations that are imposed to control unpopular speech based on the type of campus place and campus visitor. The U.S. Court of Appeals for the Eighth Circuit interpreted three campus places at the University of Arkansas at Fayetteville as public fora (Bowman v White 2006) The constitutional issues involved a campus policy which had been revised in 2001 to regulate the demand on using outdoor spaces, including all streets, sidewalks, and parks on the campus The facility-use policy specifically had distinguished between "University Entities and Non-University Entities" as on-campus and off-campus 313

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individuals. The policy required non-university entities to make a three-day advanced reservation to use a campus space and restricted reservations on the use of facilities and outdoor space to a five-day cap per semester per entity. The policy limited reservations for use of outdoor spaces to an eight-hour day and restricted use during "dead days," described as one quiet study day per semester, all final exam periods, and dates of commencement activities. The federal complaint was brought by Gary Bowman, a self-professed Christian street preacher who frequently visited the university campus to speak on his religious beliefs. He had engaged in a variety of communication exchanges with pedestrians on the campus, including signs, speech, distributing literature, and personal conversations. He had visited other campuses as well, seeking college students to share his Christian faith on their campus outdoor areas. The University of Arkansas administration was concerned about Bowman's visits to the campus, because his interactions at times generated complaints from students and faculty, as well as police responses to quell disturbances and to control crowds numbering as many as two-hundred people. The administration continued to enforce their policies on annual limits for reserving campus outdoor areas and refused to let Bowman reserve campus places beyond the restrictions imposed by their policy. As a result, he filed a lawsuit alleging that their policy restrictions had violated his First and Fourteenth Amendments to the U.S. Constitution, and he sought an injunction against the university as well as damages under 42 U.S.C. 1983. 314

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The Bowman opinion cited the Justice for All v. F au Ikner (2005) decision from the Fifth Circuit Court of Appeals to substantiate that the U.S. Supreme Court's forum analysis jurisprudence was not a mandate to interpret the entire campus as a public forum category. The Bowman opinion declared, "The facts of this case show that the University's grounds cannot be labeled as only one type of forum" (p.977). The court's reasoning was the same as its assessment of the form, use, and meaning place-attributes of a campus: A modem university contains a variety of fora. Its facilities may include private offices, classrooms, laboratories, academic medical centers, concert halls, large sports stadiums and arenas, and open spaces. The University of Arkansas at Fayetteville is this type of institution. Its open spaces, like those at most major universities, come in a number of different types. Some are enclosed quadrangles bordered on all sides by university buildings and traversed by sidewalks, while others are grassy areas or plazas on the edge of campus where the University's grounds abut the city property. Thus, labeling the campus as one single type of forum is an impossible, futile task. (976-977) The Bowman interpretation of the University of Arkansas at Fayetteville as a "modem university" containing a variety of fora was a comprehensive placeassessment of the campus. The court's description and place-typing analysis ofthe form, use, and meaning attributes of a modem university described a change in the concept and approach in the judicial interpretation of campus as a place. The Bowman opinion conducted an in-depth place-assessment of the place-attributes of the University of Arkansas at Fayetteville campus places, to categorize them as public 315

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fora. The court interpreted the following campus areas as "unlimited designated public fora": The Union Mall is located in the center of campus between the library and Union Mall facility. It is an outdoor area composed of grassy mounds surrounded by sidewalks and walkways, benches, and potted trees and plants. A bike rack, basketball hoop, fountain and street lamps appear in pictures depicting the area. The Union Mall hosts a variety of organized events such as political gatherings and musical events. The Peace Fountain is located in the center of campus and hosts a variety of organized and unorganized events. The Peace Fountain is a metallic tower structure with a fountain of water at the base A cemented area with potted trees and plants surrounds the fountain. Sidewalks run through and parallel to the Peace Fountain. A statue and small stone wall appear in pictures of the area. The Brough Commons building is an on-campus eating facility, but the area in question is outside the building at the intersection of Dickson Street and Ozark Street. Dickson Street runs from downtown Fayetteville and dead-ends in part ofthe campus. The area in question consists of a large s i dewalk with some landscaping featuring trees and plants. The area also contains a historic marker memorializing the acquisition ofthe farmland on which the University sits. The Bowman opinion distinguished the form and placement of the three physical locations to describe the openness of other campus places (Figure 8.15): The objective evidence in the record shows these particular areas combine the physical characteristics of streets sidewalks and parks and are open for public passage. They do not include university buildings or stadiums but they are located within the boundaries of the campus. The Union Mall and Peace Fountain are completely surrounded by University buildings. (977-978) 316

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Figure 8.15 The University of Arkansas at Fayetteville (Aerial Photograph courtesy Google Earth) Common judicial opinions continued to describe campus locations as having the same physical character and design as traditional public fora. Yet the courts always continued campus place analysis by emphasizing that physical character alone was not the final determination of a public fora classification. The Bowman opinion cautioned that the public forum analysis of"the open nature of these spaces is merely a factor to consider in determining whether the government has opened its property" (citing Grace, 1983, p. 177). The Bowman opinion advocated that the public forum analysis included a place assessment, writing: "We must also examine the traditional 317

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use ofthe property, the objective use and purposes of the space, and the government intent and policy with respect to the property, not merely its physical characteristics and location" (978). The Bowman opinion also distinguished types of campus place in public forum analysis: "Some places on the University's campus, such as the administration building, the president's office, or classrooms are not opened as fora for use by the student body or anyone else" (977). The same opinion provided the guide for the Fifth Circuit Court of Appeals' interpretation of non-public fora campus places; that the commonform, use, and meaning place attributes of non-public fora all have similar physical characteristics, which are interior, administrative, and enclosed places with varying degrees of accessibility. The Bowman opinion contained other place-typing standards and interpreted other types of campus places by physical form and use: Other campus locations, such as auditoriums or stadiums allow for certain speech on certain topics. These locations may be described as designated public fora. Further, the public streets and sidewalks which surround the campus but are not on the campus likely constitute traditional public fora. Grace, 461 U.S. at 177. Accordingly, rather than attempt to label the entire campus as one type of forum, we will discuss only the specific areas at issue in this case. (p.977) The Eighth Circuit Court of Appeals continued to provide background on their interpretation of a broader contextual meaning of campus as a place of debate and discussion: Indeed, in times of great national discussion, such as during the height of the Vietnam War or the debate over the war in Iraq, college 318

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campuses serve as a phase for societal debate. Often those speaking on college campuses are not enrolled students, but rather people like Bowman, who travels from campus to campus to spread their message. Thus, public university campuses historically contain places where space is specifically designated by society and universities themselves for speech. (p. 979) The Bowman opinion specifically stated that the public forum analysis only applied to the Union Mall, Peace Fountain, and Brough Commons as unlimited designated public fora. The appellate court held that their decision did not apply to any other areas on the campus. The Bowman court determined that the University of Arkansas at Fayetteville was not unconstitutionally limiting use of the campus by a type of speech or speaker. The court upheld all of the campus facility-use policies that applied to a non-university entity, except for the five-day cap per semester restriction. Judicial interpretation of the campus place as a designated public forum did not preclude regulation of campus visitors to speak on campus. In Marcavage v. West Chester University, Michael Marcavage, a self-described evangelist, had filed a federal complaint to obtain access to the West Chester Campus in West Chester, Pennsylvania. The District Court for the Eastern District of Pennsylvania cited Bowman (2006) from the Eighth Federal Circuit Court of Appeals case, to affirm that higher education campuses contain places designated specifically by society and universities' speech (Marcavage v. W Chester Univ, 2007). The conflict in the Marcavage case had occurred on October 13, 2005, on the West Chester University (WCU). Marcavage and a group of followers had traveled to the campus to engage in open-air preaching regarding religion and abortion; to 319

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distribute literature and display signs on the public streets, sidewalks, and grounds of the university. Marcavage was arrested when he refused to leave the campus after Dr. Matthew Bricketto, Vice-President for Student Affairs, informed him that his speaking activities were in violation of university policy. The district court interpreted the West Chester policy and classified the campus as a designated public forum. Davis v. Stratton (2008), decided in the U.S. District Court for the Northern District ofNew York, continued the same fact patterns as the previous cases involving off-campus speakers. Gregory S. Davis, an ordained minister, had been arrested on September 8, 2006, while preaching the gospel in the Quad on the Schenectady County Community College (SCCC) campus, a part of the State University ofNew York (SUNY) system. Judge Lawrence E. Kahn described the Quad as an "outdoor area within the center of several SCCC buildings where students often congregate" (p.415). The area was within the boundaries of the campus, combined the physical characteristics of streets, sidewalks and parks, and was open for public passage. Judge Kahn interpreted the physical characteristics of the Quad: "The physical characteristics of the Quad, if they were considered alone, would likely make it a traditional public forum" (Davis, 2007, p.417418) However, his judicial opinion also cautioned that the interpretation of physical appearance alone did not qualify a place as a public forum. He was consistent with other federal circuit judges' use of Widmar (1981) and Grace ( 1983) in cautioning that the physical character or nature of public property was not the only 320

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determination of a public forum. The Davis opinion limited the public forum analysis to the Quad area and not to other areas of the campus. Despite Judge Kahn's statement that the public forum analysis was limited to the Quad, he provided insight into how he would interpret the other areas of the campus: The Court is considering only the Quad area, where Davis seeks to preach. This discussion is not intended to address other areas on the campus, which may be limited public fora (e.g. auditoriums, stadiums, or art galleries), designated public fora (e.g. classrooms), non-public fora (e.g. administration buildings or offices), or traditional public fora (e.g. the public streets and sidewalks which surround the campus [see Grace, 461 U.S. at 177]) (p. 418). Judge Kahn cited Grace (1983) to add that publicly owned or operated property did not become a public forum simply because members of the public were permitted to come and go at will. A caveat from Grace was that the open nature of the space was only one factor for the court to consider in determining whether the government had opened its property as a public forum. The judicial opinion stated: "because of the Quad's physical characteristics, and SCCC's policies and regulations, the Court finds that SCCC has opened the Quad area for use by the public as a place for expressive activity as a designated public forum" (Davis v. Stratton, 2008, p. 418). The court ruled that Davis was within his rights to use the Quad area for speech expression; and Judge Kahn interpreted the campus as a designated public forum, based on the traditional meaning of the campus as a place of free expression the Quad's physical characteristics, and SCCC's own policies and regulations. 321

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Court cases involving campus visitors also have been interpreted as state law. In Jews for Jesus, Inc. v. City College of San Francisco (2009), the U.S. District Court for the Northern District of California addressed a state law to determine the public forum category and administrative authority to impose speech restrictions. In this public forum case on a higher education campus, the judge did not cite Widmar ( 1981) to distinguish the campus from other types of places. The City College of San Francisco (CCSF) had a policy that required off-campus solicitors to register to use the campus for solicitation on campus. Further, the policy restricted solicitors to Ram Plaza, between Smith Hall and the Student Union. Robert Wertheim, an employee of Jews for Jesus, an off-campus organization not affiliated with CCSF, visited the CCSF Ocean Campus to distribute literature about the Jews for Jesus organization He was warned on several occasions in 2007 and 2008 that the campus policy required a permit to distribute literature on campus. When Wertheim again visited the CCSF campus on April3, 2008, to distribute literature, he was again informed by campus police that his distribution of the literature on campus required a permit; that if he did not stop distributing the literature, he was subject to arrest. Wertheim did not cease his actions, was arrested by the campus police, and transported to a holding cell at the San Francisco county jail for three hours. The day after Wertheim's arrest, the charges against him were dropped. Wertheim and Jews for Jesus challenged the San Francisco City College 322

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policy as unconstitutional restraint on speech, that it unconstitutionally subjected individuals to a waiting period and placed restrictions on their speech rights U.S. District Court Judge Marilyn Hall Patel cited Grace (1983) to emphasize: "There can be no doubt that the distribution of free religious and political literature is precisely the sort of speech protected by these constitutional provisions" (p. 8). In her interpretation of the CCSF campus she quoted the Perry (1983) definition of a traditional public forum: "Quintessential public forums include public parks, streets and other places which by long tradition or government policy have been devoted to assembly and debate" (p 8). She continued her public forum analysis by adding that the broader definition of a public forum under the California's Liberty of Speech Clause in the California Constitution was "whether the communicative activity is basically incompatible with the normal activity of a particular place at a particular time" (p.9). Judge Patel wrote "A primary purpose of a college or university is to contribute to the exchange of ideas. As defendant impliedly concedes, sidewalks and plazas on a publicly supported college campus constitute a public forum under either standard (Jews for Jesus, Inc v City College of San Francisco, 2009). She was going to issue an injunction against the CCSF campus for implementing the time period restrictions based on her interpretation of the campus as a public forum. However, the CCSF administration responded in a court filing that they had rewritten the policy to require only that an off-campus individual inform the Dean of Students 323

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by completing a form on campus. Jews for Jesus was the first case reviewed for this dissertation, in which a federal judge had applied a state constitution amendment in the public forum analysis to interpret that the campus by mission was a traditional public forum. The Jews for Jesus case was settled out of court, with $60,000 going to Wertheim and the Jews for Jesus organization, plus attorney fees. The designated area to distribute literature was expanded as represented in the map of the CCSF Ocean Campus. The Jews for Jesus and the ASU Students for Life v. Crow cases were both within the Ninth Federal Circuit but separated by the judicial interpretations of the campus policies. The Jews for Jesus (2009) case confirmed that Widmar was still a significant case cited by judges to distinguish higher education campuses from other types of traditional public fora when interpreting that a campus's mission is to educate students. Place assessment interprets the meaning of a campus, with a designated place for speech expression by on-campus individuals, compared to a limited place for off-campus individuals. Limited Public Forum for Off-Campus Speakers The judicial interpretation of place includes an assessment of the class of speakers seeking to access higher education campuses for speech activity. In Glover v. Cole (1985), the dispute was over a ban prohibiting individuals from soliciting donations or selling newspapers and other items on the West Virginia State College campus in Institute, West Virginia. The plaintiffs, not students at the campus, sought 324

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an injunction against the campus for denying their First Amendment speech rights to solicit donations on campus, to sell newspapers and other literature on behalf of the Socialist Workers Party and Young Socialist Alliance. The U.S. District Court for the Southern District of West Virginia held that the campus's enforcement of a state-wide policy prohibiting on-campus sales and fund-raising activities by groups not sponsored by students or the college, had not violated the two plaintiffs' First Amendment rights The plaintiffs (Glover v. Cole, 1985) appealed to the U.S. Court of Appeals for The Fourth Circuit that, while the campus had allowed them unrestricted access to espouse their political and social beliefs throughout the college campus, the restriction on solicitation was a violation of their rights The location provided to the plaintiffs to engage with people in discussions of political and social issues, and to distribute free copies of socialist newspapers and related reading materials, was an information table adjacent to the student union building. The court records identify that the dispute began when the plaintiffs attempted to sell their newspapers and solicit donations on behalf of their organization. The appellate court determined that the question of the public forum classification of the campus was easily addressed, because it appeared that both parties had conceded that the campus area was a limited public forum. Instead, the court focused on its public forum analysis of the context of the campus and the power to regulate an educational facility inhabited by impressionably aged students. The court stated: 325

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What the case is about is not whether plaintiffs are engaged in core first amendment activity. Nor is the case about whether non-students have the right to enter the college campus to espouse a particular political view; plaintiffs have already been allowed to speak freely. Rather, the case involves the narrowly focused issue of whether the state properly exercised its right a) to regulate the manner by which third parties may make use of its educational institutions and b) to restrict essentially unregulated approaches to students who are at a stage in life where the primacy of education in its claim to their attention rather sets them apart from the body politic, indiscriminately viewed. (p. 1201) The appellate court determined that, while the campus was an open location, campus administrators still had a significant interest in protecting the students from harassment by vendors and commercial activity. In this case, the West Virginia State College campus was interpreted as a limited public forum for commercial activity but a designated public forum for individual speech. The court's interpretation of campus place as different types of public fora was also influenced by the administration's actions in opening access to campus place. In Gilles v. Torgerson ( 1995), the requirement for outside speakers to obtain a campus sponsor was the constitutional issue. The specifics involved a complaint by James G. Gilles, described in the opinion as an "itinerant preacher" (p. 499) who had challenged the constitutionality of a Virginia Polytechnic Institute and State University (Virginia Tech) requirement that outside speakers must obtain a campus sponsor from a recognized student organization or university agency in order to speak on campus. The blanket sponsorship applied to all members of the public seeking to use any Virginia Tech facility for speaking events and engagements. 326

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In his complaint, Gilles maintained that the blanket sponsor requirement had prohibited him from preaching on Virginia Tech's "drillfield." He appealed to the U.S. District Court for the Western District of Virginia, which upheld Virginia Tech's policy against Gilles' First Amendment challenge (CA-92-933-R, 1995). The District Court Judge interpreted the drillfield as a non-public forum, distinguishing it from the Glover v. Cole (1985) plaza area on the West Virginia State campus, because the West Virginia administration had admitted to creating a limited public forum by maintaining their plaza as an "open campus" location to non-campus individuals. The Gilles v. Torgerson (1995) appeals court described the physical form and use of Virginia Tech's drillfield as a large open area in the center of the campus. The opinion acknowledged, "On any given day, several hundred students may traverse the drillfield while walking between classes" (p.499). The Virginia Tech administration offered Gilles the campus amphitheater, described as a "more isolated area located west of the drillfield and surrounded by trees" (p. 499). Gilles had rejected the amphitheater as a less "desirable venue for his preaching, because in his view few students congregate at the amphitheater" (p.499). In subsequent correspondence, Gilles rejected three other "high traffic" locations offered by Virginia Tech, specifically, two dining halls and "Henderson Lawn" (p.501). The judicial opinion noted that Gilles had been granted access to the University ofVirginia campus to preach, based on Virginia Tech administration's 327

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willingness to serve as a sponsorship; however, he was not granted an open invitation to preach anywhere on campus. The next case that addressed off-campus speakers in the evolution of federal court cases was Milton v. Serrata (2004). Its fact pattern is similar to other campus cases involving the constitutionality of restricting non-student speakers on campus, except this is the only case that included a legislative law and state constitution to address the use of campus place by non-students. In Milton (2004), a District Court for the Northern District of California addressed the legal distinction between the "peaceful protests" of a student and non-student group on the San Francisco State University (SFSU) campus. The case opinion did not include a public-forum place analysis as the other court cases referenced in my study. The plaintiffs-Eric Milton, Dan McCullough, Victoria Soria, and Myh Yo-were members of an anti-abortion group called "Survivors of the Abortion Holocaust" (Survivors). The group arrived on the SFSU campus on October 10, 2002, to deliver a pro life message. The members were not SFSU students, nor affiliated with an SFSU organization. Will Flowers, in the Office of Student Programs Leadership Development (OSPL), gave them permission to use the campus plaza. He met with the group and granted approval for them to use the Malcolm X Plaza (Plaza) area for their speech activities. In court records, Flowers stated that he had allowed the group to hand out literature but not to display posters because he was concerned that "large posters would interfere and distract from the peaceful Queer Alliance event already 328

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taking place in the Plaza which included amplified music, speakers, food booths, and an estimated 300 people" (Milton v Serrata, 2004 p.3). Flowers added that he also had been concerned that a poster could fall and possibly cause injuries. Members of the Survivors group recalled receiving permission to use the campus place but did not remember the restrictions on setting up their poster. The Survivors had arranged themselves on a grassy lawn near the SFSU library, approximately twenty feet from the Queer Alliance tables in the Plaza. The judicial opinion stated that Flowers had gone to the location after receiving complaints from the Queer Alliance about the Survivors' display. According to the opinion account, the scene at the Survivors' display varied from Flowers' statement that the Survivors and members of a crowd were yelling at each other; whereas, the Survivors said they had not been yelling but were being heckled by onlookers and members of the Student Socialist Organization. Flowers had determined that the confrontation was disrupting the peaceful conduct of educational activities at the campus (p.4) and had the SFSU Police inform the Survivors' members that they had to leave campus. The police officers had explained to the plaintiffs that they were violating California Penal Code section 626.6 and asked them to leave the campus. The plaintiffs McCullough, Soria, and Vo complied and left campus; however Milton continued to display his sign and was arrested, violating California Penal Code sections 626.6(a) and 415.5(a) (2). 329

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The criminal charges against Milton were subsequently dropped. He then sued SFSU for violating his civil rights by denying his First Amendment rights. The District Court focused on the request for qualified immunity by the SFSU defendants, who had argued they were following California law in ordering plaintiffs from the campus after complaints that the response to their speech was causing a disturbance. In his judicial opinion, District Court Judge Charles R. Breyer did not make a public forum analysis of the campus place, based on the standard Supreme Court decisions in Perry (1983) and Cornelius (1985). Instead, he focused on the question of the California Penal Code sections 626.6(a) and 415 5(a)(2), determining that "it was not clearly established case law that that peaceful non-student demonstrators could only be excluded from university grounds based on a material disruption by the demonstrators rather than a hostile audience reaction to the demonstration that materially disrupted campus activities" (p. I). The Milton v Serrata (2004) case was not informative on the question of place analysis; however, as a public forum case, it provided insight into the application of a specific law based on how state legislation can manipulate the status of non-student rights on a California campus. Judge Breyer wrote that, even if the plaintiffs actions were viewed in the most favorable light, they were: peacefully distributing pro-life literature and displaying pro-life posters, a crowd of approximately forty to fifty students gathered around plaintiffs various members of the audience were heckling plaintiffs and acting boisterously, plaintiffs engaged in some discussion but remained peaceful and never blocked access to any buildings or encouraged any violent behavior, and defendant Flowers 330

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received approximately six complaints from students in the library about the noise coming from the demonstration. The judge examined the facts presented above, in comparing California Penal Code section 626.6(a) (Power to Direct Person to Leave Campus): (a) If a person who is not a student. .. enters a campus or facility, and it reasonably appears ... that the person is committing any act likely to interfere with the peaceful conduct of the activities of the campus or facility, or has entered the campus or facility for the purpose of committing any such act, the chief administrative officer or his or her designee may direct the person to leave the campus or facility (b) The provisions of this section shall not be utilized to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly. Judge Beyer granted the defendants qualified immunity because he reasoned that Flowers and the police officers had believed the Survivors' conduct on October 10, 2002 was a violation of the statute California Penal Code section 626.6(a): By distributing pro-life literature and displaying signs, plaintiffs elicited a hostile and loud response by the audience that disrupted students who were studying in the library, thus interfering with the peaceful activities of campus. Under the plain language of the statute, the disruption to campus activities is not limited to boisterous activity by non-students. Flowers could have believed that plaintiffs' demonstration was responsible for the crowd's hostile reaction and ultimately the cause of the campus disturbance. (p. 11) Judge Breyer next conducted a constitutional analysis of the statute, to determine if it was unconstitutional as applied to the Survivors' conduct on the SFSU campus on October 10, 2002. He reviewed Tinker ( 1969) and Grayned (1972) to assess how the constitution had been applied to prohibition of expressive activity that materially disrupts the educational environment or other students. Judge Beyer wrote that neither 331

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case was helpful because Tinker addressed student behavior on campus and Grayned involved non-students in a traditional public forum. The judge stated that "Neither case addressed the right of peaceful non-student demonstrators to remain on campus grounds" (p. 14). To establish the public forum case law theme that students and nonstudents do not share the same rights on a campus, Judge Beyer cited Widmar (1981). Based on his assessment of the law and the facts in this case, he concluded: Although plaintiffs make a strong argument that their constitutional rights were violated, the inquiry on qualified immunity is whether those rights were 'clearly established.' Plaintiffs do not cite any case addressing the right of peaceful non-student demonstrators to remain on campus. At the time of the incident, it was not clearly established that peaceful non-student demonstrators could only be excluded from university grounds based on a material disruption by the demonstrators rather than a hostile audience reaction to the demonstration that materially disrupts campus activities. The defendants are entitled to qualified immunity, and their motion for summary judgment is GRANTED (pp. 15-16) The requirement for off-campus speakers to obtain permission to use campus space is a stipulation beyond scheduling campus places for speech activity. In Bourgault v. Yudo/(2004), the U.S. District Court of the Northern District of Texas upheld the University of Texas Arlington's (UT -Arlington) campus policy that required off-campus speakers to obtain student sponsorship to speak on campus. The complainant Matt Bourgault, who described himself as a traveling Christian evangelist, had visited UT -Arlington on April 22, 2002. He had begun preaching in a pedestrian area near the campus university center when he was approached by a campus police office and informed that off-campus speakers must obtain permission 332

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from the student governance office and have sponsorship by a campus group in order to speak on campus. In this case, permission to speak on campus also required adherence to the university policy about the use of campus facilities; the building policy had stated that the campus was not open for public assembly. Bourgault had been unable to find a student sponsor. Thus, he had been denied a request to have the university administration waive the speaking requirements. Approximately eighteen months after his first attempt to speak on the campus, Bourgault filed a complaint seeking to enjoin UT -Arlington from enforcement of their speaking restrictions. He asserted that the open areas of the university campus were traditional public fora and that the administration's policies were unconstitutional. However, the UT-Arlington off-campus speakers' rule, which prevented religious speakers from evangelizing and witnessing on campus, had been repealed prior to the date of Bourgault's lawsuit. U.S. District Judge Barefoot Sanders recognized that no federal court had interpreted a public university campus as a traditional public forum (Bourgault v. Yudof, 2004). The judge held that UT -Arlington's policy had created only a limited public forum for the use of members of the campus community, and determined that the policy requiring off-campus individuals to have a campus sponsor to speak on campus was reasonable in light of the purpose served by the forum. 333

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A similar decision was reached in the federal case ACLU v Mote (2005), when the Fourth Circuit Appellate Court held that the University of Maryland College Park campus was a limited public forum. The case involved UM's requirement that off-campus speakers must obtain a campus sponsor to schedule a place to distribute leaflets on campus. The location of this conflict was the sidewalk area outside the Stamp Student Union and adjacent Nyumburu Amphitheater (Figures 8.16 and 8.17). The court identified the location as "the single most trafficked place by a crosssection of the campus" (A CL U v Mote, 2006, p 442). Figure 8.16 Aerial Photograph University of Maryland Campus (courtesy Google Earth) 334

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Figure 8.17 Stamp Center UM Campus (courtesy Google Earth) The appeals court affirmed the District Court's decision that the UM College Park campus was a limited public forum based on school's educational mission. The Mote (2006) court identified the public fora categories as traditional, non-public, and combined limited and designated fora into the same type of public-fora category ; and linked the two categories as one type of public forum, writing : "Once a limited or designated public forum is established the government cannot exclude entities of a similar character to those generally allowed" (p 443). The court referenced Grace (1983) in order to interpret the campus as a place with a mission to educate students, thus separating the campus from similar looking physical locations: 335

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Contrary to plaintiffs arguments, the campus is not akin to a public street, park, or theater, but instead is an institute of higher learning that is devoted to its mission of public education. This mission necessarily focuses on the students and other members of the university community. Accordingly, it has not traditionally been open to the public at large, but instead has been a "special type of enclave" that is devoted to higher education (p. 444). The Mote (2006) court rejected the plaintiffs' interpretation that the outdoor areas of the UM College Park campus were public fora because of the open nature of the outdoor areas on campus that allowed access to visitors as well as student, faculty, and staff. The court, thereby, interpreted the University of Maryland College Park campus as a limited public forum for student, faculty and staff, and a non-public forum for off-campus individuals. Interpretation of the campus as an educational enclave was a factor in the court's assessment of off-campus individuals to access campus places for speech expression. A similar decision to Mote (2005) was Gilles v. Miller (2007), decided in the U.S. District Court for the District of Kentucky. The circumstances in Gilles v Miller (2007) were similar to those in James Gilles' other unsuccessful appeal in Gilles v Torgersen in the Fourth Circuit Court of Appeals in 1995 In Gilles v. Miller, James Gilles had arrived on the Murray State University (MSU) campus on October 4, 2004, to speak with individuals about his religious convictions as well as cultural issues. After eighty minutes in an area west of the Curris Center, the MSU student center, Gilles was approached by the Center's manager and informed that the area was not a designated free-speech area on campus. 336

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The manager also informed Gilles that he could not continue speaking on campus because his speech was considered solicitation and MSU's policy required that solicitors obtain sponsorship from a student or a university organization in order to speak on campus. Gilles left the campus to avoid being arrested. However, after Gilles' series of communications with MSU officials and unsuccessful attempt to persuade them to revoke their policy, he filed an injunction in federal district court, alleging a violation of his constitutional rights. He filed the federal complaint against Murray State University in Calloway County, Kentucky. The Gilles v. Miller case facts identify Gilles as a frequent visitor to the MSU campus since the 1980s. He had engaged in sharing his religious message with others in a manner that he identified as peaceful and non-harassing. Whereas, MSU indicated that Gilles's statements had generated complaints because they were hostile and offensive to pedestrians. In his public forum analysis of the MSU campus, District Court Judge Thomas B. Russell, for the U.S. District Court for the Western District of Kentucky, cited both ACLU v. Mote's (2005) education enclave statement and Bowman s (2006) place-assessment. He listed the pertinent factors in the interpretation of campus place as "the traditional uses of the property, the objective use and purposes of the space, and the government intent and policy with respect to the property" (Gilles v Miller, 2007, p. 948). The judge's place analysis ofthe MSU campus interpreted that the campus was a designated public forum for students and a limited public forum for non-university speakers. 337

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James Gilles continued to challenge campus speech policies, filing a federal complaint against Miami University in Oxford, Ohio, in Gilles v Garland (2007). Identified as "Brother Jim," Gilles claimed he had been denied a place to preach on the Miami University campus in Oxford, Ohio on multiple occasions between 2002 and 2004. He specifically claimed that he had been unable to find a campus sponsor to schedule a time to speak in the Academic Quad in the center of the Miami University campus (Figure 8.18). Figure 8.18 University of Miami Academic Quad (Photograph University of Miami website) The Gilles v. Garland (2007) case ultimately was heard as an appeal by the Sixth Circuit Court of Appeals. The opinion outlined multiple circuits and cases that interpret campus place as public forum. The court reviewed a set of public forum cases, affirming that the open areas on the Miami University campus were not traditional public fora; the appellate court cited multiple federal cases and circuits, previously identified in this dissertation. The opinions cited ACLU v. Mote (2005) from the Fourth Circuit; Bowman v. White (2006) in the Eighth Circuit; and Gilles v. 338

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Blanchard (2007) in the Seventh Circuit, were all campus cases that rejected the interpretation of the campuses as traditional public forum. The important distinction in Gilles v. Garland (2007) was the court's conclusion that the weight of the case law "rejects the notion that open areas on a public university campus are traditional public fora" (p. 511 ). The resultant decision by the appellate court was that Miami University's open areas represented limited public fora. The court determined that Gilles's challenge, that the solicitation policy was vague, did have merit and remanded the case back to the district court. The concurring opinion by Circuit Judge Karen Nelson Moore in Gilles v. Garland (2007) agreed that open areas of campuses consistently are not interpreted as traditional public fora, remarking, "The majority slights the fact, however, that our sister circuits have taken varying approaches to determining exactly what kind of fora these campus areas constitute" (p.513). She provided a public forum analysis by citing Mote (2005), in which the Fourth Circuit had "held that open areas on a university campus amount to a limited public forum, in which restrictions on the class of 'external' speakers are subject to the deferential standard requiring only that the restrictions are content-neutral and reasonable" (p. 513). She cited the Fifth (Justice for All v. Faulkner, 2005) and Eighth (Bowman v. White, 2006) Circuits as appellate court cases that had interpreted open areas of campuses as designated public fora, where speech restrictions are subject to strict scrutiny. Her concurring opinion is an important observation of public forum analysis of campus place across different 339

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federal circuits; she deduced that it is established case law that campus open areas are not traditional public fora The legal issue in the public forum court cases is "whether the campus areas constitute a designated public forum, limited public forum, or neither" (p.513). Judge Moore's Gilles v Garland (2007) comment emphasized that legal analysis alone would not determine the outcome of a public forum case on campus; that the facts and surrounding context of these issues, therefore need interpretation to determine the distinctions among the different types of middle public fora. Judge Moore did not address the specific types of facts important in public forum analysis; nevertheless, it is important to assess how much of the factual analysis and interpretation on public forum cases have been based on the physical place analysis of where speech is being challenged. A comparable court decision was reached in Gilles v. Blanchard (2007) in which the Court of Appeals for the Seventh Circuit addressed an appeal of a district court ruling of a summary judgment that a speech policy on Vincennes University had been unconstitutional. This opinion was written by Circuit Court Judge Posner, who identified that Gilles had engaged in protected speech and that the legal issue was just a question of"whether the protection extends to a particular site on the university campus" (p. 467). In Blanchard (2007), Judge Posner wrote that Gilles had first visited the Vincennes campus in 2001 to preach to pedestrians, who were walking by the lawn in 340

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the middle of the campus next to the university library. The opinion provides additional background on the history of Gilles's encounters on Vincennes University, including accusation by the Vincennes University staff that Gilles had preached in a confrontational style, calling people "whoremonger and drunkard" (p.468). Concerned with Gilles's style of preaching, they had adopted a "sales and/or solicitation policy" requiring prior approval from the dean of students. The policy defined sales and solicitation as "the act of seeking to obtain by persuasion; to entice a person to action; or the recruiting of possible sales" (p. 468) and restricted approved solicitors to the brick walkway in front of the student union. The year after the policy was passed; Gilles returned to the Vincennes University campus and was denied access to use the library lawn to preach. He was not satisfied with the brick walkway, because it was adjacent to a street and "a noisy local for speech" (p. 469). He filed a federal complaint, contending that the solicitation policy had infringed on his right of free speech. In Blanchard (2007), Judge Posner interpreted the lawn of a university as a perfect location for preaching the gospel, but that the campus administration had final determination on the use of the campus facilities; that the university was within its rights to limit access to outside speakers based on content-neutral criteria: No matter how wonderfully suited the library lawn is to religious and other advocacy, Vincennes University could if it wanted bar access to the lawn to any outsider who wanted to use it for any purpose, just as it could bar outsiders from its classrooms, libraries, dining halls, and dormitories It wouldn't have to prove that allowing them in would disrupt its educational mission. (Gilles v Blanchard 2007). 341

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The Blanchard court distinguished the circumstances on the Vincennes campus from Gilles's claim that Bowman (2006) should set authority in this case because Vincennes had created a policy that made the library lawn completely off limits to uninvited outsiders. The Blanchard opinion acknowledged that a campus administration can distinguish between classes of speakers in order to preserve their forum for intended users; that this status-based distinction was constitutional even if the use of the forum for "those inside the permitted class of speakers and those outside the permitted class of speakers [is] quite similar" (p. 470). In Gilles v. Blanchard (2007), Judge Posner questioned use of the term "solicitation" as a vague concept, such that "anyone that opened their mouth to say anything is a solicitor" (p. 472). He wrote ofhis concern that Vincennes University had formulated their policy as a pre-textual discriminatory infringement on Gilles's space in order to control potential disturbances, by restricting his presence on campus. The judge cited American Knights of Ku Klux Klan v City of Gary (2003), emphasizing that yielding to a "heckler's veto" infringes upon a person's free speech rights. He concluded that Vincennes University's policy was constitutional, however, because it restricted access by all individuals to the library lawn, not only Gilles. The court interpreted the library lawn as a limited designated public forum, but noted that use of this term was an unnecessary flourish created in Bowman (2006) and in Faulkner (2005). Judge Posner opined the following to describe the way the term has been filling a gap in public forum analysis: 342

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This fourth category is variously (and confusingly) termed the "limited designated public forum" (versus the "true forum ), the "limited public forum," or the "limited forum." The terms denote a public facility reserved for some speakers but not others, here members of the university community and their guests but not uninvited outsiders. (p. 474) Judge Posner wrote that the fourth category of public fora is not necessary when a campus place is restricted to the campus community and not to uninvited visitors. An important feature in the Gilles v Blanchard (2007) opinion was a photograph contained in the case opinion to illustrate the location of the public-forum conflict (Figure 8 19). Figure 8.19 Aerial Image of Vincennes Campus (Gilles v. Blanchard, 2007, p.468) 343

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A recent Federal District court case Bloedorn v. Grube (2009), reflects a change in the federal interpretation of campus place as a public forum. In this case the constitutional place-typing question debated the status of a campus in its entirety as a place for off-campus visitors' speech activity. Benjamin Bloedorn, a traveling Christian evangelist, was frequently visiting college campuses to preach his Christian message to students and other passersby. He stated that when he visited campuses, he preached four-to-six-hours a day for approximately three consecutive days; that he did not solicit funds or membership for any organization. Bloedorn and several companions had visited Georgia Southern University for the first time on March 28, 2008. To preach their message to students and pedestrians, he used the grassy knoll beside the Russell Union Student Center pedestrian mall and Rotunda; while his companions preached from the pedestrian mall itself. According to court records, Bloedorn had selected the Russell Center and surrounding areas because those places were excellent focal points for student activity. After they began preaching, they were approached by an unidentified university official who provided them with an "Application for Use of Georgia Southern University Facilities" and informed them that they needed to submit the application to the university to continue using the area for their speech activity (Bloedorn v. Grube, 2009). Benjamin Bloedorn had refused to submit the application, believing the requirement was an "an affront to [his] religious beliefs" and because it went "goes against [his] understanding of constitutional freedoms" (p. 5). He also "was troubled 344

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and intimidated by the request for personal information and the topic of [his] speech" (p. 5). He was again approached by campus police and informed that he had to submit a facility-use application to speak on the campus. When he refused to stop preaching or to submit the application, he was arrested and charged with trespass. The trespass charges were dropped at a later time. Bloedorn sought an injunction against the facility-use policy, asserting that his constitutional speech rights to preach freely on the Georgia Southern University campus on March 28, 2008 had been denied. District Court Judge B. Avant Edenfield, for the U.S. District Court for the Southern District of Georgia, conducted the following place-assessment on the open character of the Georgia State University: Several city streets and their adjoining sidewalks extend through and/or alongside the campus. There are no fences or other barricades separating the campus from the city of Statesboro, and members ofthe public may access the campus to walk on its sidewalks and grassy areas or to visit various on-campus facilities that are open to the public, such as a botanical garden, a museum, and a performing arts center. (pp. 3-4) The judge analyzed Bloedorn's arguments for seeking unrestricted access to the open outdoor areas of the campus. Bloedorn had interpreted the campus sidewalks adjacent to the public streets alongside and through the campus, and the pedestrian mall and Rotunda outside the Russell Student Center, as traditional public fora. He had argued that these campus places shared the same objective character as city sidewalks and parks, which are presumptive traditional public fora, and had interpreted the grassy 345

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knoll area outside the Russell Student Center as a designated public forum because the university had assigned it as a "free speech area." The Georgia Southern University administration had identified their campus as a limited public forum, because they had not adopted a policy that opened the campus outdoor areas to public speech; nor had the public been permitted, by tradition or policy, to engage in unrestricted public discourse. The university also had specified locations where campus visitors were permitted to engage in public limited free speech at places and only in a manner that did not "compete with the ongoing programs of the University" (p. 15). Judge Edenfield decided not to interpret the campus places identified in the Bloedorn complaint and, instead, wrote: Despite Bloedorn's desire to have the Court undertake a piecemeal forum categorization of each of the campus areas he has referenced, the Court finds it more appropriate to address and categorize the campus as a whole, since outsiders must utilize and abide by the at issue speech policy in order to access any part of the campus for purposes of public speech (p. 16). Judge Edenfield assessed that the Georgia Southern University policy on facility-use had created two types of categories of speakers: members of the university community or individuals invited by members of the university community, and "outside" speakers not invited by a campus organization. The judge concluded that the campus was a limited public forum to non-campus members, because the university had restricted access to outsiders and required them to obtain a permit to speak publically anywhere on campus. He found that the university, in turn, 346

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had allowed members of the university community and their invitees unrestricted access to campus public forum places without permit. Judge Edenfield's opinion cited Gilles v. Torgersen (4th Cir. 1995), identifying that a higher education campus administration could reserve the right to assign campus space to off-campus speakers. He stated that the permitting process of granting access to a campus had created a class of speakers in a limited public forum, subject only to the requirement that the policy be viewpoint-neutral and reasonable in light of the purpose served by the forum; that the permitting requirement was constitutional if it did not discriminate based on viewpoint and was applied equally to all individuals requesting permit to speak on campus. He determined that the restrictions on off-campus individuals were "sufficiently narrowly tailored to serve the University's significant interest in furthering its educational purpose" (p. 30). The limited public forum at Georgia Southern, and other campuses discussed in this subsection, is a campus place-type that by meaning and function, is reserved for a narrow range of uses and activities. Judicial interpretations have upheld the constitutionality of campus policies and practices that restrict campus place-types for limited classes of campus speakers, based on the campus's mission as an educational enclave. While city officials can constitutionally impose time, place, and manner restrictions in traditional and other public-forum categories, the restrictions cannot be based on the status, class or affiliations of the speakers to the city property. Federal 347

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courts also have been interpreting these places as locations not available for indiscriminate use by the general public; that if the uses are based on content-neutral standards, the government's actions are evaluated at a reasonableness standard that is a constitutional application of the Public Forum Doctrine. This power possessed by campus administrators to restrict general public access to the campus for speech activities is unique, and akin to the power of administrators over military bases, prisons and airports, except that the higher education campus is idealized identified, and is generally maintained as an open, barrier-free place that provides unrestricted access to the public. Public Forum Is Not a Shield for Disruptive Conduct The court cases analyzed in this dissertation are consistent in addressing campus as a non-public forum when individuals engage in conduct that bars them from campus. Rosenfeld v. Sample (1986) is a U.S. District Court opinion from the Western District ofNew York Federal Court, which also cited Widmar (1981) as case law, establishing that higher education campuses are distinctive types of public fora, which look like traditional public fora of streets and parks but are not the same. The Rosenfeld court held that the discipline of a law student who remained in a building to witness a demonstration, after being directed to leave the building, could not claim that his freedom of speech rights superseded the university's responsibility to maintain order. The court ruled that a university is maintained primarily for the benefit of its student body and faculty. 348

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Three judicial opinions have ruled in a consistent pattern that the First Amendment is not a shield to protect disruptive conduct on higher education campuses (Greenberg v. Woodward, 2001; Putnam v. Keller, 2003; Souders v. Lucero, 1999). In all three cases, the judicial opinions interpreted the open nature of the campus as a type of public forum that is accessible to members ofthe community. The Appellate Court for the Ninth Circuit Court of Appeals in Souders (1999), and the District Court in the Fourth Circuit in Greenberg (200 1 ), both rejected challenges by former professors that their bans from campus had violated the First Amendment. In the Souders case, the Oregon State University (OSU) graduate was banned from campus after he was arrested for stalking an OSU student. He asserted that the ban was unconstitutional because the campus was "a public forum, like a street or a public park, which he had a right to visit" (p. 1043). The court acknowledged the open nature of the OSU campus, allowing members of the general public to access the campus without restrictions. However, the Souder opinion held that, despite the open nature of the campus, administrators were not required to open the campus to individuals whose conduct created a threat to other members of the campus community; that constitutional standards required campus administrators to articulate that the individual's conduct was a threat to campus operations and that the restrictions were narrowly drawn to serve a compelling interest. The Souder case compared the power of campus administrators restricting access to a higher education campus to overall restrictions on access at a military base; that when an individual is 349

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restricted from campus, the public forum status for that person's constitutional rights of access and expression related to the campus are changed to a non-public forum. In Greenberg (2001), a similar fact pattern developed when a Westfield State University professor was restricted from the campus in Westfield, Massachusetts, based on his disruptive behavior. Federal District Court Judge George A. O'Toole, Jr. held that the university was a location open to First Amendment freedoms of speech and petition that are not disruptive to the uses dedicated to the property (Greenberg v. Woodward, 2001, p. 7). The judge cited Widmar ( 1981 ), distinguishing the Westfield campus from traditional public fora, such as streets and parks, when the educational mission of the campus allowed the administration to impose reasonable regulations over the use of its campus and facilities. Court support of campus administrators to ban persons from campus still must meet all constitutional protections for the individuals. In Putnam v. Keller (2003), the Central Community College administration had terminated a professor's teaching contract and banned him from campus. The retired music instructor and faculty member of the college's Columbus campus had retired but was still employed as a part-time instructor; he also had enrolled in an adult continuing education course for the 200112002 academic school year. In January, 2001, Putnam was informed that the college was eliminating his part-time position. A short time later, he received a letter from the college's legal counsel that he was being investigated for misappropriating school funds. The letter also informed him that he was banned from campus until at 350

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least June 1, 2003. After Putnam was unsuccessful in having the ban rescinded by the campus administration, he filed a constitutional complaint alleging the college administration denied him his constitutionally protected First Amendment rights of freedom of speech complaint and association. The Putnam opinion interpreted the character of the campus as a designated public forum, and confirmed the district court's ruling that the campus was a designated public forum. The appellate court stated: "The record establishes that the College opened the campus for expressive activities, such as musical performances and other activities available to the public" (p. 549). The court held that the former instructor had the same First Amendment right of access as any other member of the community, and that the campus officials had not shown that banning the professor from campus served a compelling state interest: In order to ban Putnam from the campus, the College officials must show that the restrictions are narrowly drawn to serve a compelling interest. The officials have made no such showing. Thus, we agree with the district court that Putnam has demonstrated a violation of constitutional rights. We also agree that Putnam's free speech rights were clearly established at the time the College officials banned him from the campus. (p.549) In Wilson v. Johnson (2005), the U.S. Court of Appeals for the Sixth Circuit conducted a place-typing assessment involving a student hanging banners from the University of Tennessee's Art and Architecture Building, one inside from a balcony and two outside from a window. Wilson also had painted the words "NO WAR" in yellow on the interior elevator door and exterior walls, and on the front doors of the 351

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Stokely Athletic Center. The judicial opinion acknowledged that the context of a university is "the quintessential marketplace of ideas," (quoting Kincaid, 236 F.3d at 352), which did not preclude "reasonable regulations compatible with th[ e] mission [of education]" (quoting Widmar v. Vincent, 1981 ). The court noted the absence of evidence that the university had intended to create a designated public forum for students to write their personal expressions on the flat surfaces of campus buildings. A campus administration's ability to control the campus environment is influenced by the U.S. Constitution, when they take action to stop or prevent actions that materially disrupt campus activities. The courts across the different circuits have been consistent in holding that the campus public forum status does not shield illegal or disruptive activity as protected speech. The distinction between prohibited campus activity and protected speech is balanced by the judicial interpretations of individuals' actions as appropriate activity for campus place-types. Judicial PlaceTyping These cases listed were based on judicial interpretation of the context of the entirety of each campus as a material place. During the 1980s, the courts began to interpret the imaginal aspects of campuses, evoking images of a "marketplace of ideas, schoolhouse gates and references to the vital protection of the constitutional values. The campus was interpreted as a conceptual place and public forum categories. Whereas, contemporary court opinions have divided the campus into multidimensional categories of place-types, giving campus officials the authority to 352

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manage their overall campus operations to support their educational missions of the campus as a place apart from other types of places in the broader society. The current judicial interpretation of campus place encompasses a variety of places, and a judicial interpretation of the character of one campus place is not a public forum classification of the entire campus. In contrast, the United States District Court for the Southern District of Georgia, declined to conduct a piecemeal place by place assessment of the campus, because the university's speech policy was broadly applied to restrict access for off-campus speakers to use any of the Georgia Southern campus places for speech activity. The location and scale of place on a campus is a factor in determining the geographical boundaries and scope of the interpretations of place and place-types. Place is defined by the judicial interpretation of the boundaries of the campus place. The judicial interpretation of campus includes assessing the macro geography of the entire campus in context with its surrounding political environment. In contrast, the judicial interpretation of a specific place is an assessment of the campus as a micro geography, defined by the attributes of the form, use, and meaning of the campus place. The judicial interpretation of the campus as a macro-geography examines the material aspects of the campus, to imaginal concepts and, ultimately, a legal conceptualization as a public forum category. 353

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Material Boundaries That Create Place The judicial interpretation of campus as a "material place" is organized, described, and mapped by its physical character. The interpretations and place assessments also include the "imaginally" imposed boundaries, representing the social history imprinted on the material place. Mapping the material aspects of the campus reflects the sovereignty of the campus administration, and is a visual way to identify and describe public fora types within the boundaries of government authority. The legal boundaries of the campus are judicially interpreted as a specific place apart from other public property and places. Material places, the subject area of campuses in shape and size, create the form of campus open places at issue in these court cases Publically owned, open-air, utilitarian, and accessible places are the physical form of traditional public fora. The descriptions of the urban, open place-types are examples of the quintessential type of public forum archetypes: sidewalks, parks, plazas, and other urban place-types. Documents of the changes in the material aspects of the campus provide visual representation of the historic changes in the social networking places on campuses. Imaginal Aspects of Place The judicial interpretation of the campus as an "imaginal" place is a legal placemaking method that links the "material" aspects of place to "conceptual" place types. The resultant legal codification of campus place into a public forum category creates archetypes of campus place types that are public forum categories. Campus 354

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administrations, architects, and activists all promote the open places as the genius loci of the campus, the distinctive physical form that represents "the spirit of the place." Yet in reflection, the spirit of the place establishes the campus as an "educational enclave" that allows administrators to conserve the campus for use by the campus community to fulfill the overarching "mission," or educational purpose of the educational institution. The spatial identity associated with the imaginal imagery of campus place, for the placemaking process in this research, was between the imaginal campus as a marketplace of ideas and the conceptual campus's educational mission. The vernacular used to describe the campus promotes the image as a place apart that is used in the campus interpretation. The judicial opinions cited were constant and adamant that a campus is not the same as municipal sidewalks and parks. The campus, identified as having the character of a public forum for students, confirms the imaginal aspect of the campus as a sense of place for students, because it confirms their spatial identity. The "imaginal" aspects of the campus as a place were highlighted in the cases where off-campus speakers argued that a campus represents democratic ideals as a marketplace for public discussion of social issues. These speakers also argued that they had a right of access to the campus as a whole, or by its public locations, in order to address their broad social issues because of a political event or the presence of public officials on campus. 355

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The 1980s plaintiffs in the University of Puerto Rico statehood march, and the University of Virginia and Utah shantytown cases, successfully gained access to campus places in their court decisions, by evoking the image of the campus as a democratic place for public discussion. On the other hand, protestors in court cases since 2000 have not been successful in convincing the court of the heightened significance of the campus as a macro-geography; these courts rejected the imaginal aspects of the campus as a traditional public forum for debate, upheld restrictions, and assigned the protestors to specific free-speech zones. For example, the 2005 political rally on the University of South Florida campus during President Bush's appearance; and in 2007 when the court refused to allow protestors access to conduct a march on West Point during Vice President Cheney's commencement speech. The judicial interpretation of campus places has evolved beyond the influence of the imaginal aspects of the campus into a place representing democracy in the broader aspects of serving as a "marketplace" to address social issues. The judicial interpretation of the campus as an educational enclave is a focused conceptualization of the educational purpose of the campus as an educational institution. Conceptual Aspects of Place Content analysis of these federal circuit court cases revealed a major conflict among the cases: confusion over the conceptual aspects of designated and limited public fora. The Davis v. Stratton (2008) opinion, in the U.S. District Court for the Northern District ofNew York, recognized that the terms "designated public forum" 356

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and "limited public forum" are not synonymous. U.S. District Judge Lawrence E. Kahn distinguished a limited public forum as a designated public forum that is limited to specific subjects or speakers, that an "unlimited designated public forum" is not limited to a type of speech or speaker, and that the restrictions in a "limited public forum" are constitutional only if they are content-neutral and reasonable in light of the purpose of the forum. Other judicial circuits have aligned with the concept that the limited public forum and designated public forum are not synonymous. The Eighth Circuit Court of Appeals in Bowman v. White (2006) wrote that, despite direction from the Supreme Court in Perry (1983) and Forbes (1998), the difference between designated public forum and limited public forum is not firmly established across the country and is "far from lucid" (p. 975). The Bowman opinion cited a case in the First Circuit (Ridley v. Mass. Bay Transp. Auth, 2004), which acknowledged that the "limited public forum" term had been used as a synonym for the term "designated public forum" and also for the phrase "non-public forum." The Bowman opinion added that the Second and Fifth Circuits had recognized that a limited public forum is a subtype of a designated public forum. This court's decisions added to the confusion in the distinctions among the designated, limited, and non-public forums. The Fifth Circuit Court of Appeals in Justice for All v. Faulkner (2005) described how the Perry (1983) public forum categories initially had consisted of 357

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only traditional, designated, and non-public fora. The judicial opinion contained the following analysis of the middle public fora category: In recent years, the Supreme Court has made it clear that this middle category is further divided into two discrete types of forum: true "designated" forums and "limited" forums. The distinction is critical in this case, because restrictions on speech in a designated forum are subject to strict scrutiny, whereas such restrictions in a limited forum are reviewed under a less demanding standard for "reasonableness." (Justicefor All v. Faulkner, 2005, pp. 765-766) The Justice for All opinion contained a footnote stating that the shift in the use of the term "limited public forum" had occurred over time, "although the Supreme Court and the circuits have clarified the functional difference between designated and limited forums, the precise taxonomic designation of the latter remains elusive" (p. 766). The appeal court's opinion contained an example of this shift, citing where the Supreme Court had referred to a limited public forum as a subcategory of designated public fora in Widmar (1981). However, Rosenberger v. Rector & Visitors of the Univ. of Virginia (1995) used the term "limited public forum" to describe a type of non-public forum of limited open access (Justice for All v. Faulkner, 2005, p. 766). The Justice for All v. Faulkner (2005) opinion summed up the confusion between the two types of public fora: The distinction between limited and designated public forums is not a simple "ali-or-nothing" proposition. The Supreme Court's forum analysis jurisprudence does not require us to choose between the polar extremes of treating an entire university campus as a forum designated for all types of speech by all speakers, or, alternatively, as a limited forum where any reasonable restriction on speech must be upheld. (p. 767) 358

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In ACLU v. Mote (2005), the Fourth Circuit Court of Appeals' place-type assessment of the University of Maryland at College Park campus is the strictest interpretation of campus as a public forum The court determined that the higher education campus is an educational enclave for the primary purpose of fulfilling the public mission of educating students; that the higher education campus "has not traditionally been open to the public at large," but instead has been a "special type of enclave" devoted to higher education. The Fourth Circuit Court of Appeals categorized the UM-College Park campus as a limited public forum for the campus population and a non-public forum for off-campus individuals. The Mason v. Wolf(2005) opinion upheld the restriction of campus place for speech activities to university community members who are permitted to speak freely on university grounds. This court determined whether a person is of a "similar character" to others, who are permitted to speak in the forum, depends on the purpose of the limited forum; that individuals not of a similar character can have access to the forum but are not free to exercise their speech in the forum. In this case, the off campus speakers were permitted to engage in speech activity only if sponsored by a member of the campus community. The Fourth Circuit Appellate Court in ACLU v. Mote (2006) distinguished the size and campus demographics of the campus, emphasizing its organizational structure to define it as a special type of place as an educational enclave for students and the campus community. The judicial opinion noted that the University of 359

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Maryland-College Park campus had not traditionally been open to the public at large; thus despite allowing the public open access to the campus grounds the campus had not granted a speech license to people on campus who were not members of the campus citizen class. The Fourth Circuit Court of Appeals emphasized that in a limited public forum "the government may draw permissible status based distinctions among different classes of speakers in order to preserve the purpose of the forum even when the proposed uses by those inside the permitted class of speakers and those outside the permitted class of speakers are quite similar (ACLU v Mote, 2005, p. 443; (Goulart v. Meadows, 2003, p. 254). The ACLU v. Mote (2005) opinion identified a constitutional authority for campus administration to segregate the campus for speech activity by place and campus affiliation ; that this distinction of segregation is permissible only if the campus administration has preserved the campus for the students and campus community for the class of speakers for its educational mission; that campus as a place reinforces the status and identity of students who in tum, reinforce the campus as a constitutional place apart for students. The appellate court affirmed the lower court s interpretation of the University of Maryland campus as a limited public forum; and grouped limited and designated public fora into the same category, requiring only a reasonableness standard on the government's justification for speech restrictions. The appellate court determined that a limited public forum allows the 360

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government to limit expression to speakers who have a specific character for which the forum was created. In the diagram below the limited public forum is presented as a public fora category that floats between the designated and non-public fora depending on the interpretation of the federal circuit. The diagram also shows the inverse relationship of speech rights to speech restrictions in public forum categories (Figure 8.20). Lower Non-Public Higher i i Speech Speech Rights Restnctions l Higher Lower Government Property Figure 8.20 Public Forum Categories Campus Place-Types As Public Fora The judicial opinions in Justice For All (2005) and Bowman (2006) determined in their place analyses that the modern higher education campus is comprised of a variety of place-types that correspond to different public forum categories. The judicial interpretation of place examines the government's intent to create a limited public forum for a specific class of speakers and subjects, with a 361

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narrower range or scope of users and purpose Higher education campuses have a set of social classes by which a campus is maintained through specific spatial ideologies in its planning process as an educational facility. Contemporary court cases have allowed campus administrations the authority to reserve the use of their campus places as the social territory of students, by segregating on-campus individuals from non-campus individuals. These courts have reiterated the mission of higher education campuses as a place to educate students as an educational enclave, segregating the campus from other types of public places (e.g., public streets, parks, theaters). Attributes of PlaceTyping The conceptual aspects of place is a typing method that identifies place by specific categories and classifies a place based on specific features, similar to the campus space management method of classifying and inventorying campus resources to identify specific attributes that form the character of the location. Form: Openness and Visibility Judicial interpretation of a campus place is determined by its degree of openness in physical form, shape, size, and location. The locations of the speech conflicts in these selected court cases were primarily outdoors and located centrally on campus. These locations were places that provided a high degree of public visibility, popular places frequented by students walking on the campus. These campus places were open in physical form, with few physical barriers around the locations 362

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Use and Fun c tion Judicial interpretation is based on how a place is used by the inhabitants in the area as a representational place compared to the organization's conceived intent for use of the place. The use attributes range from general to specific types of uses over time. The way speakers have used campus places has not changed over time. Also speech activities have not changed over time ; primarily spoken words, speeches, leafleting, and presenting exhibits. However the content of the speech conflicts have changed from political issues in the 1970s and 1980s (e.g., addressing Puerto Rico's statehood anti-apartheid) to religion and pro-life / anti-abortion protests in contemporary court cases. Meaning and Purpose The meaning of campus places was not specifically identified in these cases; however, the judicial interpretations of the campus places did assess the universities' purposes and intentions in creating the places, as narrow or broad. The overall classifications ofthe campuses (e.g., academy, residential, urban, four-year) were not identified by the judges as a factor in their interpretations of campus place as public forum. The meaning of the campus has changed over time as a public place, as not an enclave stripping students and faculty of their constitutional rights upon entering the campus grounds. Federal judges now interpret the campus as an educational enclave 363

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that allows campus administrators to restrict the types of activities on campus to the primary purpose of use by students on the campus. A common theme in all these judicial interpretations is the distinction between campus place and non-campus place. These judges interpreted the campus physically as a place apart from the surrounding environment, due to the mission of higher education. Access Restrictions The fourth attribute I included in this place-typing method is the degree of control to restrict access to a campus place for speech activity. This is a significant place-attribute, based on the common attributes identified in the literature regarding public space, bonus space, civic space, and urban space. Today, the type of access is based on the type of ownership controls exercised at public, private, and parochial places. The places are identified and assigned a comparison place-type, based on the access and control over the public property. Public places are now identified as public accessible places. Parochial places are limited access locations, like hallways, courtyards, and auditoriums. Private places are personal locations, like dormitories and non-public locations, like offices, classrooms, laboratories, and meeting rooms. The access status of a campus and its meeting rooms may change, depending on the use of the place for specific types of activities and the presence of specific types of individuals. 364

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The nature of campus speakers seeking access to campuses for speech activity has changed during the course of the time of the selected court cases in this dissertation. Campus court cases identified in the prepublic forum era involved speakers invited by students and faculty to southern campuses in Alabama, Mississippi, and Tennessee. In the public forum civil rights cases in the 1960s, the judicial interpretations of campus as a public place for speakers reflected the federal courts' declaration of the unconstitutionality of social restrictions on access to public places. The cases of the 1970s and 1980s were primarily students seeking access to campus places to promote their political expressions as public forum. The universities' responses increased student access for speech opportunity by creating policies that allowed scheduling campus places for campus speech activity. The more recent cases were filed by off-campus individuals seeking access to campus to express religious views to the campus community. Off-campus speakers primarily have failed in their constitutional challenges to campus restrictions on scheduling campus places for speech activity, and unsuccessful in challenging campus policies that require a campus sponsor for scheduling a campus place for speech expression. Chapter Summary In this chapter, I analyzed the content of selected cases in addition to Mason v. Wolf(2005), to compare the place-typing model on both the aspects and attributes of higher education campuses. First, I classified, inventoried, and catalogued the fifty Three federal court cases (Appendix B), (a) by the federal circuit and state within the 365

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circuit, then (b) the court decision type as a district court case or appellate court case. The highest numbers of cases were from the Fifth Federal Circuit, specifically nine court cases involving higher education campuses in Texas. Three federal cases were filed in multiple states and federal circuits by 1 ames Gilles. I classified all of these court cases, based on the different case law topics and campus place-types. I analyzed the individual cases by the judicial interpretations of campus place and the final court decisions. This chapter identified the common case data, campus context, and content from judicial opinions, in order to design the Campus Place Public Forum Typology, which is given in chapter 9, where the public forum analysis is applied to the Auraria campus Analyzing the judicial opinions of these selected cases enabled me to identify the place-typing assessments of the various federal judicial interpretations on campus place, so that in Chapter 9 I apply this typing of campus place as public fora. 366

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CHAPTER 9 CAMPUS PLACE PUBLIC FORUM TYPOLOGY Introduction This chapter conducts the place-assessment of the Auraria campus places, by applying the Mason v. Wolf(2005) judicial interpretations from Chapter 7 on campus place as public fora and the selected court cases from Chapter 8, to associate the Auraria campus place-types. I begin with an overview of the key concepts for creating a place-assessment public forum typology; for this, in the literature I identified the major place theories and themes and how they applied to my research. Then I discuss how the place-type assessment and theories of placemaking are used in judicial opinions to conceptualize public forum analysis Included in this chapter are the design and application of my Campus Place Public Forum Typology of campus place-types on the Auraria campus as public forum categories. Also included are visual representations of the Auraria campus place-types, to identify the place-types identified in the judicial interpretations of campus place in the selected public forum cases. I have mapped the campus places into color-coded borders, to represent the relationship between the legal authority and the production of material places as public fora. Both the typology and visual 367

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analysis is an innovative method to evaluate judicial interpretations of the character of a campus place in order to determine how those interpretations produce public fora I designed the Campus Place Public Forum Typology by reviewing the selected public forum cases, in comparison to Judge Figa's Mason v. Wolf(2005) opinion. I used the judicial interpretation of campus place to classify the judicial opinions of the other selected court cases as place-typing assessments for my Campus Place Public Forum Typology. Then I evaluated the campus places by the judicial interpretations of the place attributes: (a) form and degree of enclosure, (b) use and range of activities, (c) meaning and purpose of the location, (d) restrictions and degree of access to the location as a type of public property. In this section, I apply the Auraria campus place, place-type assessment, architectural name, and public forum categories, in order to identify comparable campus place-types on the Auraria campus as well as the architectural descriptors from chapter 5, as shown in the following aerial image of the campus (Figure 9.1). In the following section, I use these architectural descriptors to identify the Auraria campus place-types by their common character, and assign my interpretation of their public forum category. I use the public place-assessment based on my content analysis of Mason v. Wolf(2005), as well as the selected court cases. 369

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representations aid in recognizing the aspects and attributes of campus place-types where speech rights constitutionally are protected on higher education campuses. Campus Place Assessment and Typology The Campus Place Public Forum Typology represents the judicial interpretation of the relationships between campus place-assessment and public forum analysis. In the following section on judicial place-typing, I answer the three research questions, by applying to Auraria the Multidimensional Place-Type Model of the theory and scholarship on place from Chapter 4, the multiple definitions of the word campus from Chapter 5, and the evolution ofthe Public Forum Doctrine from Chapter 6. Developing the Multidimensional Place-Type Model provided a foundation for approaching the content analysis of the selected cases. In Chapter 7 I analyzed the content ofthe Judge Figa's opinion in Mason v Wolf(2005), to compare that case to the content in the judicial opinions in the selected cases analyzed in chapter 8. In both Chapters 7 and 8, I conducted a place-typing assessment of the federal court cases, to examine how the judicial interpretation of campus place in public forum analysis is a method of judicial place-typing. The judicial opinions in the selected cases did not explicitly state or acknowledge the place-typing theories, so I have identified and described how physical locations are judicially interpreted as types of multidimensional legal places that produce public fora. This approach to court case 368

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Figure 9.1 Auraria Campus Overview (Image courtesy Google Earth) Campus Quadrangle As Squares, Plazas, and Malls The quintessential public place on a campus is its quadrangle, square, or plaza located in or near the campus center. The most celebrated campus places, as well as the most contested in conflicts over public speech, are the central quadrangles, squares, plazas, and lawns. These central locations, which are similar to the Auraria campus flagpole area, are campus place-types sought for use for public expression by speakers, as in the majority of the selected court cases. Examples of campus places in those court cases identified as designated public fora include outdoor zones on the Arizona State University campus (ASU Students for Life v Crow, 2009); outdoor 370

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areas on the University of Arkansas at Fayetteville campus (Bowman v. White, 2006); and the quad area on the Schenectady County Community College campus (Davis v Stratton, 2008). On the Auraria campus in Denver, Colorado, several types of places have the physical character of a campus quadrangle, in the form of a concrete area or lawn, or a combination of both concrete and grass, depending on the design. The Auraria campus contains a variety of outdoor places that form a network of public places that are identified materially on street signs, maps and documents as plazas, squares, malls, and courtyards. Each of these areas is open to the public, and each was designed for multiple uses as a place for different types of academic, administrative, and social activities. The outdoor areas available to students for scheduling speech events are identified in the "Auraria Events Policies and Procedures" document; which clearly states that the areas "available for Outdoor Events / Festivals include the Tivoli Square, 1Oth Street Mall (up to the Flagpole), Lawrence St. Mall, North Classroom Lawn, St. Francis Lawn, and 9th Street Historic Park" (p. 37). All the locations in AHEC's events document are similar outdoor venues for public gatherings. I examined each of these areas--campus place-types-which are designated public fora. Flagpole Area The intersection of the Lawrence Street Mall and Tenth Street Mall forms the central campus square identified in Mason v. Wolf(2005) as the flagpole area. Judge 371

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Figa 's classification of this area as a designated public forum established its legal place-type assessment on the Auraria campus He interpreted the open form of the flagpole area as a place used for a wide variety of activities, beyond serving as a pedestrian walkway as ingress and egress to the campus buildings. The flagpole area connects Lawrence Street Mall Tenth Street Mall, and the Plaza Building steps to a large designated public forum at the center of the campus (Figure 9.2). Figure 9.2 AHEC Central Outdoor Venues (Image courtesy Google Earth) Access to the flagpole area is unrestricted and does not contain "hard" or "soft" controls in the form of physical barriers or security guards to prevent access. Use of the flagpole area for speech activity requires a campus related group to 372

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schedule the space for a registered event. As the hub of the Auraria campus, the area is used for a wide variety of social activities (Figures 9 3 and 9.4). Figure 9.3 Flagpole Area and Emanuel Art Gallery (Photograph by author) Figure 9.4 Flagpole Area Facing West (Photograph by author) 373

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Auraria Memorial Amphitheater A campus place not identified in the Auraria campus literature is the Auraria Memorial Amphitheater, located in front of the Plaza Building steps on the Lawrence Street Mall. The amphitheater is identified in Mason v. Wolf(2005) as the place Feuerborn had selected as a free-speech zone, along with the Plaza Building steps; both are quintessential symbolic places for public expression as designated public forums. The Auraria Memorial Amphitheater location is identified by a concrete block and a plaque, stating that it was "dedicated in 1991 by the Auraria students to honor the women and men who have proudly served their country" (Figure 9.5). Figure 9 5 Auraria Memorial Amphitheater (Photograph by author) 374

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Naming this location an amphitheater was a place-typing method that signified the place as a stage for public expression and interaction. The Auraria Memorial Amphitheater symbolizes a transformative place for pedestrians to pause in their movement along the outdoor malls on the campus. Malls and Sidewalks The Auraria campus malls are wide, major walkways through the campus, which are open for pedestrian access only; campus policy bans other modes of travel along the malls, such as bicycle and skateboard. These walkways were once city streets; prior to 1988, they formed part of the Denver sidewalk and street infrastructure. Denver's streets and parks are described by Justice Roberts' in his Hague (1939) opinion as types of places that "have immemorially been held in trust for communicative purposes by the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." (p. 515). The city streets and parks described by Justice Roberts ultimately were classified as traditional public fora in the Perry (1983) public forum categories. Judge Figa's opinion in Mason (2005), however, established that when the flagpole area was converted from a city sidewalk and transitioned into a higher education campus place-type, it did not retain the traditional public forum status. Instead, he interpreted the physical dimensions, multiple uses, and broader meanings of the flagpole area sidewalk as a designated public forum, which is one tier below a 375

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traditional public forum in the Perry (1983) categories. A designated public forum is public property the government specifically has opened for expressive activity, which treats the property as if it is a traditional public forum (Perry, 1983). Judge Figa's interpretation of the form of Auraria's campus sidewalks factored in his place-typing assessment that the wider walkways represent social places that allowed unrestricted public access to the flagpole area. His interpretation ofthe Auraria sidewalks Mason v. Wolf (2005) is similar to Jane Jacobs' (1961) promotion that sidewalks are material places that function to link the social fabric of a city. Lawrence Street Mall The Lawrence Street Mall, Larimer Street sidewalk, and Tenth Street Mall are the three major campus walkways connecting the Auraria campus network of social and active places. The Lawrence Street Mall is an open pedestrian walkway available for use for campus events and social activities (Figure 9.6). This Mall, having replaced a city street, includes both a sidewalk and an adjacent lawn. The eastern section of the Lawrence Street Mall intersects Speer Boulevard as a gateway to the campus. It is the most active pedestrian walkway on the campus, and its intersection at the Tenth Street Mall is the busiest node of pedestrian movement on the campus. The Lawrence Street Mall is similar to the University of Virginia's Lawn, as a symbolic campus place-type that promotes a collegiate atmosphere. Judge Figa 376

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classified this Mall area, which connects to the flagpole area and is a continuation of an activity node on the Auraria campus, as a designated public forum. Larimer Street Figure 9.6 Lawrence Street Mall (Photograph by author) The Larimer Street and sidewalk, converted into a campus mall in 1988, is physically different from the Lawrence Street Mall (Figure 9.7); the Larimer Street area is not a pedestrian only sidewalk (Figure 9.8). However, the east side of the 377

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sidewalk is not used for general activity, nor does it serve a purpose for a wide variety of meanings beyond its limited purpose for pedestrians The east side of the sidewalk on the campus is a pedestrian area with a limited-use service road that ends in a culde sac for the Regional Transportation District (RTD) public bus system. Figure 9.7 Larimer Street and Larimer Plaza (Image Courtesy Google Earth) Speer Boulevard separates the Auraria campus from downtown Denver, and the Larimer Street sidewalk between the downtown business district and the campus is the most travelled ingress and egress to the campus. The Larimer Street sidewalks at the intersection of Larimer Street and Speer Boulevard allow unrestricted access of pedestrians to and from the campus. Therefore, this walkway conveys a "narrow meaning" as a place for pedestrians to enter the campus. Both the east and west sidewalks of Larimer Street on campus, near the intersection at Speer Boulevard are open in form but are not available for public 378

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expression, due to the high level of pedestrian and vehicular traffic at that location. Use of the east side of Larimer Street on the campus is limited to general campus activity by the AHEC administration The Auraria campus "events" policy does not list the Larimer Street sidewalks as campus places for scheduling events; the campus restriction on speech activity in this area signifies that the location is a limited, or even non-public, forum as a right-of-way for campus access. Figure 9.8 Larimer Street Entrance (Photograph by author) The east side of Larimer Street on campus is similar in character and circumstances to the entrance to the parking lot in the Texas Tech case (Roberts v Haragan, 2004) in which the court held that the campus administration could prohibit speech activity due to concerns of safety for speakers and to avoid distraction 379

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to automobile drivers. Therefore, at the Larimer Street entrance to the campus, the judicial interpretation of the campus sidewalk area, as a limited public forum, is measured by the relationship between the campus sidewalks across Speer Boulevard to the city as well as for the safety of pedestrians. The west side of Larimer Street on campus is a contrast in campus place-type. This side of the Larimer Street pedestrian walkway intersects with the Tenth Street Mall at the Tivoli Building, forming the Larimer Plaza and Tivoli Square. I define this place assessment in the next section below. The sidewalks on the Auraria campus and the surrounding Denver property do not contain a physical character that identifies a difference between the two types of public fora at the campus border. The sidewalks that border the campus are similar to the sidewalk locations on or near the campuses at the University of Texas-Austin (Brister v. Faulkner, 2000) and the Colorado School of Mines (Mason v. Trefny, 2006). The lack of physical demarcation between these two types of public property can cause confusion between the public fora categories and the levels of speech rights that are protected on the sidewalks of the campus and within the city of Denver. The border between the Auraria campus and the city of Denver at Larimer Street is the oldest physical place linking these two. The architectural harmony between the campus sidewalks and the intersecting Denver sidewalks is similar in form but with different types of public fora. These particular sidewalks, despite their open nature and unrestricted public access, are limited public fora. 380

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In contrast, the city sidewalks, despite their intersection with campus places, maintain their traditional public forum status as municipal sidewalks. The sidewalks surrounding the campus are Denver rights-of-way and are not under the authority of the Auraria campus administration. Tenth Street Mall The Tenth Street Mall, as the Lawrence Street Mall and Larimer Street pedestrian area, had been formerly platted and used as a Denver street. However, Tenth Street was converted into a walkway at the beginning of the redevelopment of the area into a higher education campus. The Tenth Street Mall and Larimer Street intersection forms a plaza (Figure 9.9). AHEC's interactive virtual tour website identifies this plaza as the "Tivoli Commons." As a placetype, the Tivoli Commons is similar to the flagpole area at the intersection of Lawrence Street and the Tenth Street Mall. The Commons contains a stage and four flagpoles, and has an open physical form that provides multiple uses for persons to engage in social activity. The stage and surrounding character of the plaza promote a meaning as a place-type as a stage that promotes public expression. The Tivoli Commons and connecting Tenth Street Mall are available to students to schedule speech activities as a designated public forum. However, the Tenth Street Mall is only available for scheduling events up to the flagpole area. (www.tivoli.org/tivoli/virtualtours/virtualtours.html) 381

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Figure 9.9 Tivoli Commons (Photograph by author) The section of the Tenth Street Mall south of the flagpole area is programmed differently than north of the flagpole area. The southern section is open in form; however, the Tenth Street Mall intersects Colfax A venue at the southern entrance to the campus and is not a location listed in the "Events" policy for scheduling an event due to the volume of pedestrians who use the walkway to access the campus. Restricting the scheduled use of the Tenth Street Mall for student activity south of the flagpole area is an intentional act to create a limited public forum there. 382

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Campus Parks Lawns and Fields The Auraria campus lawns are large open and grassy, used for formal and informal activities. The campus has several locations that are types of campus green places including parks (Ninth Street Historic Park), formal lawns (Lawrence Street Mall Lawn) informal lawns (North Classroom and St. Francis Lawn), and restricted service areas (Athletic Fields)(Figure 9.10) Figure 9 .I 0 A uraria Lawns, Parks, Greens and Quadrangles (Image courtesy Google Earth) 383

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Ninth Street Historic Park The Ninth Street Park is an open, accessible place that is similar to the flagpole area. Also a former Denver street, it was converted into grass lawns, flanked on both sides by Victorian houses, when the campus was constructed in 1977. The Park is not identified as a major pedestrian walkway, as are the Lawrence Street and Tenth Street Malls on campus (Figure 9.11). The Ninth Street Park is, by meaning, an Auraria landmark, which is accessible to the public and is part of a series of self-guided walking tours of historic Denver residences and neighborhoods. Using the houses as offices mixes the operational functions of AHEC's services with the location's historic significance as a formal type of place (Figure 9.12). The Park's operational uses and historic significance do not restrict use of the site for scheduling events and activities The Park is listed in the campus events policy as a place available for campus members to reserve campus related outdoor activities. The Park is a designated public forum based on the location's availability for scheduled speech activity. The Park also is similar to the other open and paved areas in the center of the campus, which are designated public fora. 384

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Figure 9.11 Image Ninth Street Park (Image courtesy Google Earth) Figure 9.12 Ninth Street Park (Photograph by the author) 385

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Lawrence Street Mall Lawn Another grassy area on the Auraria campus is the Lawrence Street Mall Lawn which is open in form and crisscrossed by a sidewalk across the campus. This grassy area also called the Central Lawn, is surrounded by the Lawrence Street Mall, Tenth Street Mall, Ninth Street sidewalk and a sidewalk on the south side, forming a formal quadrangle (Figure 9.13). The Lawn is also adjacent to the Memorial Amphitheater and flagpole; yet it is a limited public forum because it is not identified in AHEC policy as a place for speech activity. By policy the Lawn is not accessible for general use by individuals for public expression. Figure 9.13 The "Central" Lawrence Street Mall Lawn (Photograph by author) 386

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North Classroom and St. Francis Lawns The Auraria campus contains several types of lawns that are campus place types shaped by the surrounding architecture and landscaping. The North Classroom and St. Francis Lawns are unlike the Lawrence Street Mall Lawn in shape and function. They are the original campus lawns that were designed to create a buffer between the campus buildings and Speer Boulevard, while serving as an urban park setting on the campus; however, the Science Building addition reduced the size of the St. Francis Lawn as a border between the campus and Speer Boulevard. The shape and form of these two lawns mirror Frederick Law Olmstead's style of following the natural terrain of a setting to create informal park settings on a campus. Shaped by Speer Boulevard with sidewalks on the east and campus roadways and sidewalks on the other three sides, these two lawns have an open physical character that provides unrestricted access to the east side of the campus (Figure 9.14). The North Classroom and St. Francis Lawns are designated public fora, because the AHEC administration has listed them in the Auraria campus events policy as outdoor places available for scheduling campus events. Because these two lawns border the eastern edge of the Auraria campus and athletic fields, there may be confusion regarding their public forum status since the lawns allow unrestricted access from the Speer Boulevard sidewalks and they are similar to other public parks along the boulevard. The appearance of these two lawns looking like urban parks symbolizes places for general use with broad meanings and 387

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unrestricted access. However, these two lawns are physically, visually, and functionally distinguishable from the Athletic Fields. Auraria Athleti c Fields The Athletic Fields are a different type of campus place; compared to the Ninth Street Historic Park, Central Lawn, St. Francis Lawn and the North Classroom Lawn as green places on campus. The Athletic Fields are a fenced-in area reserved for athletic, recreational, and operational activities. The official designation of this area as athletic fields (also known as playing fields) narrows the meaning of the fenced-in area for specific operational purposes. The other place-typing attribute of the Fields that sets them apart from the other campus green places is that they are the only enclosed area of the campus that restricts access to the campus community and the public; the Fields are enclosed, open-air places that officially are recognized promoted, and restricted for specific purposes The Athletic Fields are restricted-use places not available for scheduling campus events This restriction as a place not open or accessible for general use or speech activity reflects that AHEC has created a non-public forum. The placetyping attributes are similar to the grounds of a military base or a prison on a micro scale, by form, use, and meaning as well as access as locations designed for a specific use to fulfill a narrow purpose with limited public access (Figures 9.14 and 9 .15) 388

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Figure 9.14 North Classroom Lawn and Athletic Fields (Photograph by author) Figure 9.15 Auraria Campus Athletic Fields (Photol!faoh bv author) 389

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Courtyards and Terraces The other types of surfaces on the Auraria campus include locations not as fully enclosed as the Athletic Fields, yet more enclosed than the campus plazas and quadrangles as campus place-type. Courtyards and terraces are architecturally defined places enclosed by surrounding buildings. A courtyard is a small outdoor space partly or entirely enclosed by buildings or other means of enclosures; a terrace is a level space raised above the surrounding area, usually flanked by a building. The courtyards and terraces on the Auraria campus are similar in physical form to the larger quadrangles and are used for social gatherings (Figure 9 .16). Figure 9.16 Auraria Courtyards and Terraces (Image Courtesy Google Earth) 390

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The smaller courtyards and terraces have the specific purpose to provide ingress and egress to the adjoining buildings that enclose and shape the place. The courtyards and terraces convey narrower meanings because they are typically named after the surrounding buildings. Access to the courtyards and terraces is more restricted by the enclosed architectural forms of the places. South Classroom Plaza: Courtyard The Auraria Campus South Classroom Plaza is a courtyard enclosed on three sides by the South Classroom Building and is used as a gathering place and primary entrance to the west side of that building (Figure 9.17). The South Classroom Plaza is accessed from the west by the Tenth Street Mall. The location is an open area that is limited in use. It is an asphalt courtyard containing park benches and trees, and is a distinctive place apart from the Tenth Street Mall. Access to the South Classroom Building is not restricted; however, the AHEC Campus Event Services policy lists this Plaza, as well as the Plaza Building Plaza (discussed below), as limited to reservations for official functions, due to AHEC's concerns that general activities would disrupt the educational operations in the multiple classrooms that are in close proximity to the area. This location is a limited public forum, due to AHEC's restrictions on use of the site as well as its enclosed nature. 391

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Figure 9.17 South Classroom Building Plaza (Image Courtesy Google Earth) Plaza Building Pla z a : Terrace The Plaza Building Plaza is an elevated place accessed by sets of steps from the Lawrence Street and Tenth Street Malls. One set is the Plaza Building steps, which are the free-speech zone designated by Feuerborn in the Mason v Wolf(2005) case. The Plaza Building Plaza was designed to provide access to the south entrance ofthe adjacent Plaza Building (Figure 9.18). The Plaza Building Plaza is also a location where AHEC has limited event reservations, due to the proximity of the multiple classrooms near the area; which is a limited public forum due to the enclosed location and AHEC's educational reasoning to limit activity here to prevent disruption of the educational mission of the campus. 392

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Library Courtyards Figure 9.18 Plaza Building Plaza (Photograph by author) Two other similar places on the Auraria campus are the Library Courtyards, which are open-air and located within, and surrounded by, the library building (Figures 9.19 and 9.20). The only means of accessing these courtyards is from within the library. Further, they are open for specific uses that are confined within the library walls. Accordingly, the meaning of both courtyards is to support activities that solely relate to the library. Access to the courtyards is restricted due to their unique location, thereby creating non-public fora. 393

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Figure 9.19 Library Courtyard (Photograph by author) Figure 9.20 Library Courtyard (Photograph by author) 394

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North Classroom Patio: Courtyard Another type of courtyard on the campus is the North Classroom Building Plaza, located along a portion of the south side of that building. This courtyard is adjacent to the ingress and egress locations on south of the North Classroom Building and is used generally as a sitting area (Figure 9.21). This Plaza also fits the description of a patio and was specifically designed as an outdoor sitting area for patrons of the food service enterprise located in the North Classroom Building. This sitting area is considered by AHEC as part of the operational, leasable space for the contracted food operator in the building and is not available for event scheduling (AHEC, 2009b ). The courtyard is separated from the Lawrence Street Mall by a fourfoot-high brick wall and landscaping. Figure 9.21 North Classroom Plaza (Photograph by author) 395

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Summary of Courtyards and Terraces The campus courtyards and terraces are similar to municipal bonus spaces as semi-public, open-air places designed for limited use and access to the adjacent buildings. The designs of these spaces are semito fully enclosed places that are available for limited use by the campus community and the public. The proximity to academic buildings and services is a factor in the limited use of these locations for speech activity by the campus community. The public forum classification for courtyards and terraces on the Auraria campus is limited public fora, based on AHEC's policy decisions. The limitation on activities, and the focus of this dissertation, is speech activities scheduled by individuals associated with the Auraria campus. Steps and Entrances The campus places near interior places are interpreted as speech corridors, based on how these places are designed to provide ingress and egress to the adjacent building facility. A distinct set of steps on the Auraria campus, and a designated public forum, is the Plaza Building steps, which were significant in the Mason v. Wolf (2005) case as the designated Free Speech Zone. The steps' attribute is that they are an open place designed for multiple uses and that serve a broader purpose than merely access to the building; they are wide and separately spaced for individuals to sit and socialize. The steps to the Plaza Building and adjacent Auraria Memorial 396

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Amphitheater create a stage for public expression and they are visible to pedestrians walking along the Lawrence Street Mall (Figure 9 .22) Figure 9.22 Plaza Building Steps (Photograph by author) Other steps on the Auraria campus are designed to provide direct access into campus buildings. Different from the Plaza Building steps, the steps into the South Classroom Building are a type of place that is semi-closed in form, with a specific use of access into the building (Figure 9.23) The limited purpose of these entrance steps means they are a type of stairs restricted to accessing a building and the area is a nonpublic forum for speech activity. The Auraria campus building entrances and steps are designed to provide specific ingress and egress to buildings or limited access places. Judicial opinions 397

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identify such places designed for this specific use as limited or non-public forum A similar judicial interpretation is expected when the sidewalk and/or steps connect a parking lot or other service type of place to a building or outdoor place. In Sabatini v. Reinstein (2000), the court determined that speech restrictions on the steps of an academic building at the Temple University campus was a reasonable and contentneutral regulation relating to the use of the property and was consistent with its academic mission. The court established that, while the steps were not restricted for public access, the sole purpose of the steps was to provide access to the building. The Auraria campus has several types of limited access sidewalks, steps, and entrances that are located close to a building and are nonpublic fora. Figure 9.23 East Steps at South Classroom Building (Photograph by the author) 398

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Dormitories Until its first dormitory housing was constructed, Auraria was strictly a commuter campus. The Campus Village Apartments were built west of the campus in 2006, through a public-private partnership with the University of Colorado, University of Colorado Foundation, and a selected private housing company. The location is demarcated by hard controls that set it apart in access and use from the rest of the campus and adjacent Denver city streets (Figure 9.24). Figure 9.24 Image of Campus Village Apartments (Image courtesy Google Earth) 399

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With an architectural design similar to the Ox bridge model of a fortress, the apartments' design is an enclosed quadrangle ofbuildings, with security gates and an interior courtyard to prohibit entry and to maintain internal security for the residents. The Campus Village Apartments are by form, use, and meaning a private area of the Auraria campus, maintaining restricted access to only student residents and staff. The campus place-type is a non-public forum based on the closed form, specific use as residential housing, and the narrow meaning as restricted-access apartments Places Between Buildings Other Auraria outdoor places are the place-types between buildings or parking lots and along roads (Figure 9.25). These are primarily enclosed locations with limited use, which provide access to and around the campus or adjacent places. These smaller service types of places are such that speakers do not seek public expression at them, due to the almost private nature of the locations. These places typically are not named or identified in Auraria campus literature as prominent campus locations. These small places between buildings are non-public fora, and are inaccessible for individual speech expression because of their enclosed character, specific uses as service places, and narrow meaning as either an alley or service walkway. 400

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Figure 9.25 Alley Between Science Buildings and St. Francis Conference Center (Photograph by author) Auraria Roads and Parking Lots The campus roads are physically open but are used for vehicular traffic, have a specific use, and are narrowly defined. The two diagrams below are current visual representations of the Auraria campus, promoted by AHEC on its website (Figures 9.26 and 9.27). Despite their open nature, the campus roads and parking lots are restricted from speech activity for similar reasons as the interior campus places. The roads and parking lots are identified as campus places, with the specific uses of vehicle travel and temporary storage of personal vehicles for the campus community. 401

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They have narrow meanings as a place-type because each parking lot is numbered and identified as a limited-use location. The Auraria campus parking lots are some of the few outdoor areas for which AHEC requires a fee to access the property for use. The parking lots are similar to private property, despite their open nature, because they were designed for a specific use and have a narrow meaning as places for vehicle parking The parking lots are non-public fora, where AHEC can restrict all speech activity due to the need to maintain safety and preserve the locations for their intended use. AURARIA CAMPUS www.ahec. edu Figure 9.26 AHEC Campus Map (http://www .ahec. edu/parking/maps.htm) 402 !!*--....... --.--... --l--JJ _..._ ....

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Figure 9.27 AHEC Campus Parking Map (http://www .ahec.edu/parking/maps.htm) Enclosed or Interior Place Interior hallways, classrooms, offices, laboratories, and other types of assignable space inside Auraria campus buildings have been categorized, coded, and itemized according to nation-wide campus facilities space standards (Stubbs, 2008). Interior places on the Auraria campus are similar to Goodsell's (1988) description of civil space as publicly owned property associated with civic power that is ceremonial, enclosed, and accessible. Auraria's interior places include ceremonial and administrative activity that supports the mission of Auraria as an educational entity. 403

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The entrances to Auraria's campus buildings do not have soft or hard restrictions that prohibit or discourage entry into the buildings. The buildings do not have locked entry points to prevent general public access into the general areas of the campus facilities. The buildings are not locked during work days, nor are guards present to discourage entry into any buildings. Despite the lack of restrictions on entry into campus buildings, the interior areas are non-public forums based on the enclosed nature of the locations and specific uses for academic functions and that the interior locations serve a narrow range of academic and administrative purposes. A non-public forum is a place where public-forum standards require only that the government set reasonable and viewpoint-neutral restrictions on speech. There are limited exceptions to the non-public forum character of interior places in campus buildings. In the next section, I discuss types of campus places that have been interpreted judicially as public forum categories. Newspapers Bulletin Boards, and Display Cases The corridors of the Auraria campus buildings are non-public fora, containing newspaper racks, bulletin boards, and display cases. The placement of these features created a different type of public fora for interior hallways, which generally are classified as non-public fora. The locations ofthe racks for free distribution of newspapers, and the public bulletin boards, have been interpreted judicially as designated public fora, meaning they are available for communication purposes. Whereas, the department display 404

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cases are limited public fora, limited to communication purposes for the assigned campus departments. The campus administration may deny interior placement of newspaper racks, and may restrict placement of newspapers to assigned newspaper racks. The academic and administrative display cases are restricted to access and expression only by assigned campus departments. The public bulletins boards are governed by campus policy and are the most accessible to the public of the three types of interior communication place-types. Typology Summary Auraria's central places that are open for campus activity are classified as general use and have a broad meaning, in that the locations have multiple purposes. The flagpole area and Lawrence Street Mall are significant places on campus and are symbolic campus icons of public places. In Mason v Woif(2005), Judge Figa's judicial opinion interpreted the flagpole area as a designated public forum, based on the characteristics of a public place. Campus places that share the characteristics of public space are: (a) open in form, (b) for general use, (c) serve a utilitarian purpose with a broad meaning, and (d) provide unrestricted access. AHEC's written policies reinforce the intention that limited types of public fora are places that are enclosed and may have restricted access for specific use and narrow meaning. The semi and enclosed places are used as parochial sites for personal use and not as an open public location for speech activity, compared to the flagpole area, Larimer Plaza, and pedestrian malls. 405

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A specific place not used for multiple activities is the area of Larimer Street and the Athletic Fields northeast ofthe campus near the Auraria Parkway and Speer Boulevard. In AHEC's events guideline, the Larimer Street area is not listed as a place available for scheduling. Typical locations for speech activity on the Auraria campus, as in the selected court cases, are the interior and center of the campus. The exterior edges of the campus are not locations sought by speakers or identified by campus administrators as sites for scheduling speech activity. On page 408, after the chapter summary, is a representation of the Auraria campus, showing the architectural names of campus place and how those campus places are classified as public fora (Figure 9.28). On page 409 is a table of the Campus Place Public Forum Typology of the Auraria campus; which is based on the architectural names, place attributes, and public forum categories (Table 9.1). Chapter Summary In this chapter, I analyzed the history of the Auraria campus, multiple definitions of the word campus, and evolution of the Public Forum Doctrine, to assess the Auraria campus place-types as public fora. I used Franck and Schneekloth's (1994b) model of place-type as the primary theoretical model which provided a place-assessment method to compare, classify, and inventory campus place-types in order to determine public forum status. The different place theories and scholarship I used to analyze and type the Auraria campus places were based on the Mason v. Woif(2005) case and the selected 406

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court cases, discussed in Chapters 7 and 8. I reviewed the multidimensional attributes (Franck & Schneekloth, 1994b) and aspects ofplace (Franck, 1994) ofthese higher education campuses, to assess how the public forum categories had been identified and applied to the campus places by the different judicial circuits. I analyzed the individual place-types and identified the judicial interpretations of campus place in the selected court cases, because of their similarity to the Auraria campus Mason v. Wolf(2005) case. I combined the campus place-typing model and different types of Auraria campus place-types to classify them as public forum categories. In this chapter, I explained my original typology design, showing the (a) Auraria campus place-type name, (b) architectural name, (c) place-type attributes and (d) public forum category, constituting the Campus Place Public For-um Typology. In Chapter 10, I provide conclusions, implications, and recommendations on how to use this typology. 407

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Figure 9.28 Auraria Campus Place Public Forum Typology (Image Courtesy Google Earth) 408

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Table 9.1 Campus Place Public Forum Typology Campus Place Public Forum Inventory Typology Architectural Public Auraria N arne Name Form Use Meaning Access Forum Category Flagpole Area Square Open General Broad Unrestricted Designated Lawrence Street Mall Open General Broad Unrestricted Designated Mall Tenth Street Mall Mall Open General Broad Unrestricted Designated Larimer Plaza Plaza Open General Broad Unrestricted Designated Larimer Street Street/Sidewalk Open General Broad SemiLimited Restricted South Classroom Terrace Enclosed Specific Narrow SemiLimited Building Plaza Restricted Plaza Building Courtyard Enclosed Specific Narrow SemiLimited Plaza Restricted Library Courtyard Enclosed Specific Narrow SemiLimited Courtyards Restricted North Classroom Patio Enclosed Specific Narrow SemiLimited Courtyard Restricted St. Francis Lawn Campus Green Open General Broad Unrestricted Designated North Classroom Campus Green Open General Broad Unrestricted Designated Lawn Central Lawn Quadrangle Open General Broad Unrestricted Designated Green Limited Athletic Fields Functional Enclosed Specific Narrow Restricted Non-public Open Space Plaza Building Steps Open General Broad Unrestricted Designated Steps Building Entrance Closed Specific Narrow Restricted Non-public Entrances Interior Places Interior Closed Specific Narrow Restricted Non-public Parking Lots Functional Closed Specific Narrow Restricted Non-public Open Space Denver Sidewalk Open General Broad Unrestricted Traditional Sidewalks 409

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CHAPTER 10 FINDINGS AND CONCLUSIONS Introduction Chapter 10 contains the research overview, findings, and conclusions of my research on the judicial interpretations of campus place as public fora. In the first section I provide an overview of the research including a brief summary of the research format: (a) public forum, (b) problem statement, (c) research questions, (d) research purpose, (e) place-type framework, and (t) research method. In the second section, Court Case Analysis and Findings, I address the three research questions on judicial interpretation of campus place by analyzing the content of the judicial opinions in (a) Mason v. Wolf(2005) and (b) the other selected federal cases. In this section I discuss how the production of public fora on higher education campuses is related to the overall theoretical framework of this dissertation I expound on the theoretical model for this research by explaining the relationship between campus place-type assessment and public fora analysis. I identify how key Supreme Court cases influence the judicial interpretation of campus place-types. I also provide information on the case data of the individual and institutional interpretations of the campus place. I conclude this section by discussing the findings 410

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and how I constructed the Campus Place Public Forum Typology from the content analysis of the selected public forum cases In the third section, Conclusion, I discuss the (a) implications of the research to identify the significance of this research, explain the findings, and expand on the knowledge related to constitutional law and place making, (b) limitations of the research, (c) recommendations for further research, and (d) final thoughts. Overview of the Study This is an interdisciplinary research approach to expand on conventional case law research to examine how judges interpret campus places as public fora in federal court cases. I expanded on the conventional legal research method in this dissertation to critically examine how judges interpret the campus places in their public forum analysis of campus places. The research approach is designed to examine how judges use a place-typing process to resolve conflicts between individuals and institutions in the interpretation of campus place-types as public fora. The resulting judicial interpretation ultimately produces a public forum on the campus that is a legal place that represents an individual's constitutional right to engage in public expression on higher education campuses. In this research, I analyzed the content of selected federal court cases to create a typology of campus place-types that were judicially interpreted as public forum categories. The content analysis of judicial opinions is a legal research method, but 411

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the criterion to create and distinguish the data into a typology is based on a broader qualitative research method of place-typing. The research approach in this dissertation was designed to examine physical places on higher education campuses as multidimensional place-types to identify underlying relationships within the physical locations (Franck, 1994). The place typing method is a theoretical framework to interpret how place represents multiple dimensions of social and mental actions in society. This research specifically focuses on how judges engage in the place-typing assessment of campus places in their public forum analysis in campus freedom of speech cases. The statement by Judge Figa that "it seems quite apparent that the flagpole area fits the description of a designated public forum" [italics mine] (Mason, p.1159) combined a public forum analysis with place-typing assessment. I realized that the conventional legal research method of reviewing federal case law was not sufficient to identify how judge's interpret campus places as public fora when resolving campus speech conflicts in federal court cases. In order to address the broader legal and social issues in this research, I expanded the conventional case law research with a content analysis of judicial opinions (Hall and Wright, 2008) and a place-typing method Franck and Schneekloth 's (1994a) to reveal commonalities and differences in material places not previously obvious or apparent. In addition the use of the combined legal place-type model builds on the 412

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understanding that social as well as legal interpretations of place are neither static nor one-dimensional. The primary federal court case that was analyzed for this research was Mason v. Wolf (2005), which involved a constitutional conflict over the use of a campus place to engage in the exercise of First Amendment speech rights on the Auraria Higher Education Center (AHEC) campus in Denver, Colorado. Mason was decided by Federal Judge Figa, who as part of his judicial decision conducted a public forum analysis of the flagpole area on the Auraria campus to resolve the speech conflict. I combined the legal research method of content analysis of the Mason judicial opinion with a qualitative case study on the Auraria campus to explore the contextual issues and facts beyond Judge Figa's legal opinion. I emphasize in this dissertation that Judge Figa's interpretation of the flagpole in his public forum analysis was a place typing assessment that produced a legal landscape on the Auraria campus. Public Forum The Public Forum is a legally defined place that is developed through constitutional case law to adjudicate legal conflicts between individual rights and institutional restrictions over the exercise of freedom of speech on public property in the United States. A public forum is a specific type of public property where individual speech rights and institutional speech restrictions are reinforced by the freedom of speech clause of the First Amendment ofthe U.S. Constitution. Over time, federal courts have interpreted public property as the following four public 413

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forum categories: (a) traditional, (b) designated, (c) limited, and (d) non-public. These categories are conceptual models that describe and define different types of public fora. Traditional public fora are sidewalks, streets, and parks where the public has traditionally gathered for debate and discussion of public issues. Government authority to limit expressive activity in a traditional public forum is sharply circumscribed. The government in a traditional public forum "may also enforce regulations of the Time, Place, and Manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication" (Perry Education Ass'n v. Perry Local Educators' Ass'n, 1983, p. 45). The designated public forum is property the government has determined may serve as a place for expression, and is subject to the same constitutional speech protections as a traditional public forum. A public entity is not required to indefinitely retain the open character of the public property; however, as long as it does, it is bound by the same Time, Place, and Manner regulations that apply to a traditional public forum. The limited public forum is public property restricted for use as a place for expression for a limited class of people; the speech restrictions are subject only to a reasonableness test in a public forum analysis. In the non-public forum, the fourth category, the government may set reasonable and viewpoint-neutral restrictions on 414

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speech rights because, by tradition or designation, the official business or mission of the place is not for speech expression. The Public Forum Doctrine is still evolving, based on constitutional conflicts over the interpretation of public property by individuals exercising speech rights and public officials enforcing speech restrictions. The different interpretations of campus place as public fora have generated conflicts resulting in court cases, which have been resolved by judicial interpretations of the locations and levels where constitutional rights of freedom of speech are protected, such as higher education campuses. Problem Statement Uncertainty over the interpretations of campus place as public fora can lead to federal litigation, when a person or a group of people file a civil rights complaint against government institutions and officials over allegations of being denied access to use public property to exercise constitutionality protected First Amendment speech rights. The speech conflict litigated in Mason v. Wolf(2005) is an example of a conflict between a institution and a individuals over the interpretation of campus place-types as public fora on higher education campuses. Conflicting interpretations over campus place, which result in federal court cases, ultimately produce public fora on higher education campuses based on the judicial interpretation of the campus place The problem for individuals and campus administrators is forecasting how judges will interpret the character of a campus place-type as public for a in a federal court case. Lack of awareness of how judges interpret campus place-types as public 415

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forum categories has exacerbated the confusion and conflicts over the exercise of First Amendment speech rights on higher education campuses. Therefore, this dissertation addressed the need for a Campus Place Public Forum Typology to assist individuals and administrators in systematically identifying the place-typing assessments of judicial interpretations of campus places as public forum categories, based on prevailing constitutional case law. Research Questions I analyzed the content of the Mason v. Wolf(2005) opinion and the selected similar federal court cases to identify how judges type campus place as public fora and to answer the following primary and secondary research questions: How do judicial interpretations of campus place in constitutional law produce public fora on public higher education campuses in the United States of America? o In the Mason v. Wolf(2005) case, how did Judge Figa's interpretation of the flagpole area as a type of place produce a public forum? o How do judicial interpretations of campus places in other campus court cases produce public fora across the different federal court circuits? I designed these research questions to examine the conflicting interpretations of campus places and to identify the values and meanings that assessed in the judicial interpretations of campus place as categories of public fora. I examined how judicial interpretations of campus place are systematically typed as public fora categories; and used this examination ofhow judges interpret campus place as public fora to create a 416

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predictive method for typing campus places as public fora. In this research approach for analyzing the contents of public forum judicial opinions, I integrated a place typing framework to expand on the legal research of public fora as a constitutional construction of campus place. Research Purpose The purpose of this research was to examine judicial interpretations of campus place as public fora by using both legal research and a qualitative a place-typing model to examining how campus public fora is produced through judicial interpretations of campus place. The research results broaden the understanding the Public Forum Doctrine by identifying the values that judges link to their interpretations of the multidimensional character of campus place as public fora. In Chapter 9, I created a Campus Place Public Forum Typology that represents the judicial interpretation of campus place-types in their public forum analysis. The Typology is designed to identify how the judicial interpretations of campus place links to public fora categories. The Typology provides a way to communicate "fair notice" of constitutional case law through the representation of the location and levels of where constitutional speech rights are protected on higher education campuses. This research and Typology can assist individuals and institutions to systematically conduct campus place-typing assessments to identify associated public forum categories based on the prevailing judicial opinions and case law. 417

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PlaceTyping Framework I reviewed the theories on the production of social place in Chapter 2 to provide a historical and theoretical context of how multidimensional places are typed into categories as place-types. The literature also provided a distinction between "space" and "place," the multidimensional concepts of place, and place-typing. I addressed how the theoretical differences between space and place were critical elements in the conflict between the individual's and institution's interpretation of campus place later in this chapter. I used the literature review to create a model for interpreting physical locations as place types. The literature review included research and scholarship theory of multidimensional place-types. Theories and scholarship in the literature have recognized that "place" represents multidimensional social constructions and interpretations of physical locations. I reviewed the theories on the multidimensional aspects of place, in order to survey their different dimensions. The public forum case law and content analysis expands on the place-typing scholarship by identifying how public fora are produced through a place-typing assessment of public property I used the place-typing attributes of form, use, meaning, and access to examine how the judicial interpretations of place-types produce public fora on higher education campuses I used Franck and Schneekloth's (1994b) Place Type Model as the primary theoretical model to examine the multidimensional aspects of place. I expanded on 418

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their Model by incorporating additional theoretical models and different interpretations of the social constructions and multidimensional aspects of place, in order to create a Multidimensional Place Typing Framework. This research expands on the scholarship and literature on the social construction of place by identifying how "place" as a multidimensional theory corresponds to "place" as a legally constructed doctrine in constitutional case law Research Method In Chapter 3, I explain how incorporated a case law research method with a content analysis of judicial opinions (Hall and Wright, 2008) and place-typing model (Franck and Schneekloth' s, 1994b) to analyze the content of the judicial opinions in Mason v. Wolf(2005) and other similar federal court cases. I determined that the scope of this research necessitated a research approach that used multiple methods to identify how the public forum was applied to higher education campus place-types to resolve campus speech disputes. By analyzing the content of Judge Figa s Mason v Wolf(2005) judicial opinion and the selected court cases from across the United States, I compared how the federal judges interpreted the character of campus place as public fora when deciding freedom of speech conflicts at campuses across the United States. I used the multiple research methods to create the Campus Place/Public Forum Typology to categorize campus place-types as public fora. I augmented the research with photographs and images of the campuses and the place419

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types to provide visual representations of the different campus-place types that were interpreted as public fora in the campus cases. I became aware of the Mason v. Wolf(2005) case during a discussion with Keith Mason when he was discussing his views on abortion in a plaza on the University of Colorado at Colorado Springs campus in 2003. I decided to use Mason v. Wolf(2005) as the central case for this study based on my discussion with Mason on the case and my fascination with the history and the physical form of the Auraria campus. My research in his dissertation included multiple visits to the Auraria campus to conduct a place-type assessment; archival review of the campus's historical and planning documents; and self-guide tours to take photographs of the campus place-types. I used the Auraria campus case study as a multidimensional place to compare to how other campus place types are judicially interpreted as categories of public fora across the country. I examined the selected judicial opinions in order to identify common patterns of physical form, characteristics, legal principles, and language used in judicial opinions when judges apply place-typing assessments in their public forum analyses. I used this research approach to gain insight into the decision making process and legal-place analyses by judges through reviewing the words, terms, and concepts they used in their public forum analysis This case study of the Auraria campus is designed to apply the research model to other public higher education campuses. This legal case study of public fora as physical place has made a broader analysis of public fora case law to other types of 420

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physical locations at higher education campuses I integrated the content analysis of these public forum judicial opinions with a place-typing assessment in order to examine how public fora exist and operate as specific types of places in constitutional law. Court Cases Analysis and Findings This research increases the understanding of how judicial interpretations of campus-place types place produces and shapes a constitutional landscape on higher education campuses. The research findings increase the understanding of how judicial interpretation of the character of place in campus public forum cases is an assessment of the multidimensional attributes of campus place-types In order to gain insight into the contextual development of the flagpole area as a multidimensional place, I examined Auraria, the campus, and the public forum using Franck and Schneekloth's ( 1994b) material, imaginal and conceptual aspects of place-typing model. I began the place-typing research on the flagpole area in Chapter 4 by reviewing the historic context of Auraria's transition as a place. I conducted a place type assessment of the multiple definitions of a campus in Chapter 5 to identify how a campus as a physical place, academic or social entity, and an organizational system are multidimensional place types. In Chapter 6, I researched the case law history of the Public Forum Doctrine to analyze the evolution of the public forum as constitutional precedent. I used Levi's ( 1961) legal precedent model to distinguish three phases of the development of the public forum Examining the Supreme Court 421

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public forum court opinions provided insight into the development of the public forum analysis through the judicial interpretation and place-typing assessment of public property in the federal courts. Content Analysis of Mason v. Wolf I analyzed the content of the Mason v. Wolf(2005) case opinion in Chapter 7, to address my secondary research question of"how did Judge Figa's interpretation of the flagpole area as a type of place produce a public forum?" This question was designed to specifically focus on how Judge Figa interpreted the place-typing attributes of the flagpole area as a public forum in this case study on judicial place typing assessment of campus place. Judge Figa's conclusion in his public forum analysis that it was "quite apparent that the flagpole area fit the description of a designated public forum" (Mason v. Wolf, 2005, p. 1159) was a legal conclusion that included a place-typing assessment of the flagpole area I initiated the research using a conventional case law research method to identify how Judge Figa addressed the legal disputes in his public forum analysis in Mason. His public forum analysis in his judicial opinions was a form of legal place typing that incorporated his interpretations of the flagpole area as an open accessible place for speech activity. I realized that conducting a conventional legal research examination of Judge Figa's opinion would focus more on the outcome of his legal decision in Mason then how he interpreted the flagpole area as a multidimensional place-type. 422

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I expanded the conventional case legal research method by combining a content analysis of judicial opinions with a place-typing assessment model to examine how Judge Figa interpreted the campus place-types as public fora. I conducted a place-typing assessment of Auraria as a material city, imaginal community, and conceptual campus. I broadened the scope of the research to include an analysis of other similar judicial opinions to examine this process across a range of federal jurisdictions. The research goal in this dissertation was to conduct a place-typing assessment to reveal information in the public forum analysis in judicial opinions that is generally not apparent in a conventional case law review of public forum cases. I used Franck and Schneekloth's (1994b) analysis of place as a theoretical model to examine public fora as multidimensional place and reveal how the judges interpret and type campus places as public fora. They identify how to conduct a place-typing assessment to identify the multiple dimensions of a physical place. Judge Figa had interpreted the open nature of the flagpole area as a place to provide a broad range of social activities. He determined that access to the flagpole area was not restricted for general speech by the public, because the AHEC administration could not justify a reason to restrict non-students from exercising their public expression in the area. Judge Figa's macro assessment ofthe flagpole area included an historical examination of the material aspects of the flagpole area on the Auraria campus. He recognized that the area had been a city street and sidewalk; 423

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however, he determined that the area was not a place that had been used for public gatherings either before or after the location was rebuilt as a higher education campus. Judge Figa established that in his public forum analysis he determined that the type assessment of a traditional public forum is not based on the history of the place but based generally on the place type of the property. Judge Figa described traditional public fora as a place that was symbolically associated with public expression. He used a conceptual place-typing approach to identify the flagpole area as a type of public fora. His conceptual interpretation of the area in his public forum analysis was a micro assessment of the flagpole area as a specific place-type. He determined that the wide sidewalk area at the intersection of the two main pedestrian malls on the campus, that form the flagpole area, had been designed to serve as a gathering place not to only serve as a walkway for pedestrians to access campus buildings. His assessment of the sidewalk area corresponds to Auraria campus planning documents that identify the flagpole area as the central intersection of the campus and the heart of the campus. Judge Figa assessed the place attributes of the flagpole's open form, general use, and broad meaning as a designated public forum. He decided that the specific circumstances that existed on April 12, 2002 had not justified AHEC' s restriction of Mason, as a separate class of speaker, from the flagpole area. The judge determined that the lack of people around the flagpole area at the time had not required AHEC to restrict Mason from speaking or leafleting in order to avoid a disruption of pedestrian 424

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traffic at the flagpole. The judge did acknowledge that AHEC could constitutionally set policies to preserve the campus place for specific use by students as a class of the campus population, by requiring the scheduling of events and use of the flagpole area by student and non-student groups. Content Analysis of Selected Cases In Chapter 8, I broadened the scope of this research by comparing Judge Figa's place-typing assessment in his public forum analysis to judicial opinions in other similar federal court cases. This research explored the relationship between place-typing assessments and public forum analysis in the judicial opinions of the selected court cases. I sought to identify the factual evidence that judges interpret in public forum cases and how their judicial interpretations of campus place as a form of legal place-typing influenced their public forum analysis to produce constitutional case law. I enhanced the content analysis in the case law review by analyzing archival material, planning documents, photographs and other visual images to provide visual representations of public forum sites. I used the Campus Place Public Forum Typology to answer my final research question, "How do judicial interpretations of campus places in other campus court cases produce public fora across the different federal court circuits?" The consensus in contemporary judicial interpretations of the character of higher education campuses are as physical places that by form, use, and meaning, and access are intended to serve an educational purpose. Judge Figa's interpretation of the 425

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flagpole area was consistent with the interpretations of the federal judges in the selected cases regarding campus public fora. The judges' primary assessment is that the higher education campus was an educational enclave that does not contain place types that are interpreted as traditional public fora for public expression. The judges determined that higher education campuses that contain open, general use locations that have a broad purpose as designated public fora and that they are accessible for the campus community to use for speech activity. The review of public forum cases identified that judges interpret the character of campus place-types as public fora by examining the campus as a distinct place type that is different than other public places. The Supreme Court opinion in Widmar ( 1981) has established a precedent since 1981 that higher education campuses, while having the characteristics of traditional public fora, are not the same types of public places as parks and sidewalks because of the educational mission of the campus. In order to address the judicial distinction of the campus as an educational enclave, I used the content analysis of the selected judicial opinions to design a typology of judicial interpretations of the character of campus place-types as public fora. I sought to create categories of campus place-types as public fora to structure knowledge by creating a systematic order of places (Franck & Schneekloth, 1994b ). The Campus Place Public Forum Typology is a place-typing assessment that can assess and predict the judicial interpretation of a campus place-type as a public forum by the character of the campus place. The Typology consists of campus place 426

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characteristics aligned as public forum categories to represent the relationship between physical locations and freedoms of speech rights. Judicial Interpretation of Campus PlaceTypes I created specific categories of campus place types by analyzing how judges identified the character of the place type is explained in greater detail below. According to Hall and Wright (2008), the coding, or as I use the term classification, of information from the cases are acquired directly from the language used in the judicial opinion. They emphasize that in the content analysis process the search for specific words and terms is dependent upon the focus of the research. The research was developed by organizing and analyzing the terms used by judges in the case opinions to identify how they interpret the character of the campus place-types. I presented a diagram to illustrate the judicial interpretation of campus place type as public fora (Figure 1.6); the following diagram is an expansion of the original to provide a visual representation of how the campus place-types are associated with the public fora categories (Figure 10.1 ). The diagram was created to depict how the campus place types and public forum categories are connected as physical and legal constructions of place. The form use meaning, and access place type attributes are the character of public places. I placed the four attributes in a vertical arrangement to represent the critical tension Agnew (2002) describes, between the values of "top-down" institutional space and the "bottom-up" individual place. Judicial interpretation is depicted horizontally to 427

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represent the power of the courts to balance the tension to render a decision in which the four attributes are interpreted together as public fora. In the following section I describe the different case law and place-typing attributes to describe how the judicial interpretations of campus places are also an assessment of the conflicts between individuals and institutions. In this section I indentified place-typing assessments in the judicial interpretation of campus place-types in contemporary public forum analysis The contextual circumstances in the cases were the critical judicial interpretations that established a link between the constitution and the campus. Place Typin g Judtctal Interpre t a b o n .. Public F onun Assessment A.nalysis Type Attributes Classificatio n rJJ ,-Q) Public Fonun Campus Place F orm Use Meaning .-\ccess Categoty Interio r Room s Closed Specific Nan ow Re;;tJ.ict e d Q) and Non C) C la;;sroo m s C\3 rJJ Steps and Limite d ;:::3 entrances e Plazas Sidewalks and Designa ted u L a\\11S 'Mumcipal Streets. UnTradtbonal Sidewalks, and O pen General Broad Resl11ctecl Parks Figure 10. 1 Conceptual Diagram of Campus Place Public Forum Typology 428

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Supreme Court Public Forum Cases The public forum analysis conducted by the federal courts is based on the prevailing Supreme Court cases and the evolution of the Public Forum Doctrine. The federal judicial opinions in this research relied heavily on Supreme Court cases to distinguish the character of the campus from other types of public property. Identifying which Supreme Court cases were cited as prevailing case law authority reveals the legal history of the evolution of the judicial interpretation of place in public forum case law. The foundation of the federal court cases and the judicial interpretations of campus place-types relied heavily on the Supreme Court cases. The critical examination ofthe Supreme Court cases as legal artifacts of the origins of constitutional place-typing is similar to the critical examination and excavation of material artifacts to develop objective knowledge ofthe historical context of the social systems that produced the material place (Morgenthaler, 1995; Shein, 1997; Wells, 2007). The significant Supreme Court cases that were cited the most in the federal cases reviewed in this dissertation established a link between the Constitution and the campus or places in general as a material, imaginal, and conceptual place. The Court's declaration that the campus is a vital place for the "the vigilant protection of constitutional freedoms" (Shelton v. Tucker, 1960, p. 47) and existed as a "marketplace of ideas" (Keyishian v. Broad of Regents, 1967; Healy v. James, 1973) promoted an image ofthe campus as a type of place where the freedom of 429

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speech to exchange ideas, and engage in vigorous debates over social issues were protected by the First Amendment of the United States Constitution. Later in the decade, the Court also used a high school case; Tinker v. De Moines ( 1969), to identify how students retain their constitutional freedoms of speech past the "schoolhouse gate" confirmed that the Court was not going to yield their protection constitutional rights at the campus borders. The conceptual place-typing assessment of the campus in public forum analysis began in 1981 when the Supreme Court in Widmar ( 1981) interpreted that despite having characteristics that were similar to a city; the campus was a distinct type of place campus from parks, streets and other types of public places. Two years later the Supreme Court's decision in Grace (1983) which, specified that the character of the place determine the public forum status and the Perry's ( 1983) place typing standards provided judges with a name and set categories to distinguish the campus from the other public places. The campus continued to be interpreted by judges apart from the other public places, which were being classified as traditional public fora. By 1985 the Supreme Court in Cornelius (1985) established a judicial place-typing assessment within a three part public forum analysis test: (a) type of speech; (b) type of place; and (c) type of government action to determine the constitutionality of the management of speech in public places. The Supreme Court cases cited in this section are the foundation of the judicial interpretation of campus place-types in contemporary public forum analysis. 430

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The specific cases in the judicial opinions are cited to identify (a) the origins ofhow the process of place-typing in public forum analysis began (b) how the Supreme Court determine and still rules that the campus is a place apart in the judicial interpretation of public places. Campus Architectural Form The judicial interpretation of campus place includes a place-typing assessment of the physical shapes and forms of campus place-types. The campus place-type were consistently recognized as possessing the same open character as the traditional public forum as a marketplace of ideas. Judge Figa's interpretation of the physical character of the flagpole area was consistent with the other judicial interpretations. The consensus in the judicial interpretations was that the modem higher education campus is comprised of many different types of place-types that correspond to different public forum categories. Locations open in form were considered places intended for occupants to engage in public interaction and social activity, symbolically linked to the campus as democratic marketplaces of ideas. The judicial interpretations of campus place in the selected cases consistently recognized the campus as a place apart from other public places. Conversely, campus places closed or enclosed were interpreted as intended for specific administrative use, with a narrow meaning to serve a limited purpose that is more likely a limited or non-public forum for speech activity. Typical examples of public places judicially interpreted as apart from public places, and different from 431

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traditional public fora, are prisons, military bases, and airports. Yet these locations are places that possess physical character and forms that are enclosed to control access and to serve a specific and narrow purpose apart from other types of public place. The form, shape, and architectural features were factors in the judicial interpretation of the campus place types as public fora in the court cases prior to the Perry categories in 1983. However, upon the creation ofthe Perry "categories" and the Grace "character" standards in 1983, the material aspects of the place were not the sole determining character that judges use to identify the campus place-types as public fora. Public Forum Boundaries The shape and form attributes of the campus place-types that are judicially interpreted as public fora were distinguished by the shape of the campus place-type. The designated public fora are open ended and shaped as linear walkways that are open for access and connect the campus quads, plazas, and lawns. Jane Jacob's ( 1961) concept and advocacy of the sidewalk as an interconnecting social place are embodied in the campus pedestrian malls. The campus sidewalks are the most common place-type where speech conflicts occurred. The campus place-types where individuals sought to publically express their speech did not change over time in the case law. The most common location where speech conflicts occurred was in locations in or near the center of the campus. Historically, all individuals have sought to use campus place-types that were centrally 432

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located and popular pedestrian sites to engage in their public expression. The individuals asserted that they not only sought access to the campus place but demanded to use locations that provided the opportunity to engage with a large amount of people. Thus they sought both public places that were also popular people places, as a public stage where they could engage in social theater. The Texas Tech case (Haragan, 2004) was one of few exceptions where the student sought to use a sidewalk near an entrance to a parking lot to express his message to drivers of vehicles traveling in the area. Place Use Interpretations Typing campus places by use required examining how the form of a campus place functions with the dominant relationships on the campus. This is an area of greatest tension between the top-down management of a campus as space by the administration and the bottom-up use of the campus as a place by campus occupants and visitors. Judicial decisions in the majority of contemporary court cases have upheld the authority of campus administrators to determine the most efficient use of their campus resources for maintaining the campus's primary mission as an educational enclave. The purpose of place defines the relationship between the use of a campus place-type and the judicial interpretation as a public forum category. I have determined that the more specific the use of a place (e.g., athletic fields, parking lots, roadways), the higher the control and restrictions that the courts allow campus 433

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administrators to impose over public speech. Equally, the judges in the selected cases held campus administrators to the highest standard of constitutional scrutiny to justification for their speech restrictions on campus places that were open for general use by the inhabitants. In most of the cases the judges acknowledged that campus is a place for students as the primary members ofthe campus community. The evolution of the judicial typing of campus place for use has distinguished reservations of campus places by the class of people who are members of the campus community. A campus signifies a unique place for use by students and their identity, distinct from other public places and other classes or types of the public. The courts have determined that campus administrators can promulgate campus policies that require non-campus individuals and groups to obtain sponsorship from a campus group to speak on campus. Campus Meanings and Classifications The contemporary judicial interpretation of the higher education campus as an educational enclave is a significant feature in the court's determination that the campus is a distinct type of place. The judge's conception of the meaning of the academic institutions to fulfill an educational mission contributes to the place-typing assessment that higher education campuses are a place apart from other public places that are open for speech expression. The judges in the selected cases did not distinguish between campus academic classifications, as in Carnegie classifications, residential versus commuter, or other types of academic or administrative 434

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distinctions In my content analysis of the court case opinions the judges interpreted the different campus-place types as categories of public fora based on their assessment of how the places were designed and intended to support the mission of the educational institution. The judges interpreted the meaning of the campus place types by how broad or narrow was the institution's intended purpose in creating the place to fulfill the campus' educational mission. Judicial interpretations of campuses in the 1960s recognized that an individual's presence on a campus as a material place did not strip the campus's occupants primarily students, of their constitutional rights Judges in the 1980s and 1990s broadened the interpretation of the campus as a public place within the surrounding political context of the community; the judicial interpretation of the campus was, during this period an imaginal place-type and archetypical marketplace of individual expression as well as a symbolic democratic place of open debate and discussion. In the mid-1990s when access to campus places for speech activity was being constitutionally challenged by off-campus individuals, the judicial interpretation of the campus narrowed and shifted to interpreting the campus as a conceptual place of place-types that are to serve only the advancement of the campus's mission as an educational enclave for the campus population The judicial opinions in the selected cases that involved off-campus speakers focused their interpretations on the meaning of the conceptual aspects of the campus as an educational place that is to serve the mission of educating students. The 435

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consensus in the contemporary judicial opinions is higher education campuses are physical places by form, use, and meaning are intended to serve educational purposes. The judges acknowledged campus administrators need to manage their campuses to fulfill this specific purpose of serving the campus's limited class of people the students and campus community The judicial interpretations of campus places increased the judicial deference to constitutionally increasing restrictions on access for speech activity. Policies on the Use of Place -Institutional Intent The case law in this research also provides "fair notice' of the distinction between types of places and well as people that are addressed in the public forum case law The courts have allowed the campus to engage in differential treatment between the campus community and non-campus individuals in the access to campus places for speech related activities. The differences are based on the courts determination that the campus mission allows a distinction between campus and non campus individuals The campus policy addressing use of campus facilities is a factor in the courts determination of the constitutionality of the action in denying use ofthe campus for constitutionally related speech activity. The intention ofthe campus actions is a factor in the courts determination of public fora classification. The court has identified that the creation of a designated public fora or limited public fora is an intentional act by the institution When the institutional does not create a designated or limited public forum the campus property remains a non-public forum. 436

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Access by Class of Speakers The judicial interpretation of the form, use meaning, and access attributes of campus place have been the major method of conceptualizing campus place-types as public fora. The review of the judicial opinions revealed that the profile and status of the speakers seeking use of campus for public expression has changed over time. The initial federal cases from the 1960s and 1970s were filed by students seeking to use the campus for their speech activities. The contemporary complainants in the campus public forum cases are primarily by off-campus or non-student speakers. They assert the same arguments of the student speakers that the campus is a place that is endowed with their personal values that verify that they as a member of the public have a right to use the place for their public expression. The contemporary assertions by the non campus individuals demanding access to campus for speech activity is built on the same arguments in the civil liberties and civil rights cases of the 1950s and 1960s. The evolution of the public forum also has influenced the emphasis on contemporary judicial assessment of the meaning of the campus as an educational enclave, which allows campus administrators to restrict access for speech activity to individuals not affiliated with the campus. The changes in the plaintiffs in the contemporary cases are primarily based on the policy decision by institutions to provide places for student to engage in speech expression but set a place use policy for individuals that are not directly affiliated with the campus as a student. The courts have generally interpreted the campus outdoor places as a designated public forum, 437

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for students, as long as the speech activity does not interfere with the educational mission ofthe campus (See APPENDIX B. Campus as a Designated Public Forum for Students). The federal court cases reviewed all upheld scheduling requirements for use of campus places based on the Time, Place, and Manner provisions in the Public Forum Doctrine They upheld the authority of campus administrators to distinguish who has access to speak on campus based on campus status and class of speaker and the campus s permissible constitutional segregation of individuals seeking to speak (See APPENDIX B. Limited Public Forum for Off-Campus Speakers). These restrictions are not total bans that restrict access to off-campus speakers, but only restrict access for speaking on the campus. These judicial opinions have allowed campus administrators a level of deference in determining the most efficient use of their resources for maintaining the campus's mission as an educational facility. The changes into categories emphasized the use and meaning attributes of campus place in the judges interpretation as a public forum. I found the judges conducted similar place typing assessment in their interpretation of the character of the campus places. The courts have over time allowed the campus administrators to conduct the following time, place and manner restrictions: Specify The locations for speech activities there are expectations that the location provides the speaker with reasonable visibility to the public. 438

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Schedule Require the speakers to schedule the place on campus for their public expression. Sponsor-Require speakers that are not affiliated by campus status to obtain a sponsor to speak on campus. The federal courts have not employed a strict scrutiny test to require campus administrators to maintain the highest standard in the justification for restrictions of speech because the restrictions are not addressing the content of the speech. Content and Type of Speech Historically the individuals sought access to campus public places to engage in active expression and interaction with students on campus. The activity could range from posters and leafleting to more vocal street preaching and street education expression. The public forum court cases did not contain complaints from individuals that sought to use the campus public places for quiet reflection. The initial public forum cases that were heard by the federal courts were challenges by students over being denied their rights to express political messages supporting civil rights, anti-war, and antiapartheid. Contemporary issues are focused on religious subjects with a specific focus on pro-life and anti-abortion messages. Campus Place Public Forum Typology In Chapter 9, I incorporated the place-typing assessment of Auraria, definitions of the campus, and the case law history ofthe Public Forum Doctrine to conduct a public forum analysis of the Auraria campus. I analyzed and classified the 439

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content of the selected court opinions, discussed in Chapters 7 and 8, to discern how the judges had interpreted the campus character as public fora to identify patterns in the judges' language and descriptions of physical form and characteristics of campus place and the legal principles that were applied in their judicial opinions. I conducted a place tying assessment of Auraria campus places by comparing the place attributes identified in the content analysis of the selected cases to similar Auraria campus places. I combined the content analyses of Mason v. Woif(2005) and the other selected cases into a uniform typology of Auraria campus places-types, identified as the Campus Place Public Forum Typology, (Table 9.1). I used the photographs obtained by personal visit to the Auraria campus to provide visual representations of the campus place-types to augment the typology and identify the visual appearance of campus-place types. I also used an aerial image of the Auraria campus to color-code the four public forum categories and identify patterns on the campus surface that are not visible from ground level observations (Figure 9.28). The color codes imprint the imaginal boundaries onto the aerial image of the Auraria campus to provide a visual representation of the physical character of the campus place-types as public fora. Summary of Interpretations The Typology offers a way to identify the characteristics of campus place types and their public forum categories. It also is a tool to communicate "fair notice" on how judges use place-typing assessment to interpret the character of a campus 440

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place-type as a public forum, based on these four place dimensions identified in the Typology. Supreme Court public forum case law has produced a First Amendment speech nexus that involves speech between people and property. However, I looked beyond the Supreme Court definition of a public forum as a government-owned property, and examined the public forum as both a social territory and physical territory. I used the Multidimensional PlaceTyping Framework to examine the relationship between the emergence ofthe Public Forum Doctrine as a legal doctrine and its impact on the campus environment. Conclusions This research on the judicial interpretation of campus place-types as public forum is a systematic process to organize knowledge about the values and meanings that are embedded in judicial interpretations in public fora analysis. The legal place typing research method and the Campus Place Public Forum Typology will increase the understanding and appreciation ofwhere public fora types are located on higher education campuses. This research has a broad range of implications and applications in law and planning that demonstrate the significance of combing a legal construction and social construction of place to examine the judicial decision-making process in public form analyses. The purpose of my research was to explain how judges interpret the campus place as public fora, however, the research also revealed why judges are needed to resolve conflicts between individuals and institutional interpretations of campus place 441

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as public fora. My content analysis of the selected cases revealed (a) the underlying differences in the interpretations of the campus place between the opposing parties ; and (b) how the research can be used to understand and negotiate the conflicts in the interpretation of campus place between individual and institutions Implications This research and Typology are place typing method that adds a new dimension to public forum case law by identifying how judicial place-typing assessments in their public forum analysis uncovers the legal relations that intersect with the social construction and character of multidimensional places. In this section I address how the research has a broad range of implications in the social and legal production of place How Does It Inform Legal Analyses This interdisciplinary research approach expands on conventional case law research to broaden the understanding of how the public forum, as a multidimensional place is produced by judicial interpretations of campus place Since the federal courts do not render hypothetical decisions on how the judges would interpret campus place types as public fora this research serves as a predictive process to identify the specific place-typing assessment that the judges employ to resolve speech conflicts. The research also provides a new way to analyze the content of judicial opinions by combining a legal place-typing assessment model to identify the broader context of 442

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how judges resolve constitutional conflicts by interpreting multidimensional place as public fora in federal court cases. The research has a both a practical and theoretical basis to use in court cases and judicial interpretations in campus public forum opinions. As a practical application the Typology provides both individuals and institutions a practical application to describe and identify campus place types as public fora without having to have the conflict adjudicated in federal court. The research also provides an individuals and institutions an objective way to apply public fora analysis to campus place-types as a means of negotiation to avoid both legal and civil legal proceedings Equally the systematic application of the court cases provide legal scholars and place theorist with an interdisciplinary research model to critical examine the multidimensional aspects of campus place. This is also a legal place typing assessment tool to evaluate future shifts in the judicial public forum analysis of campus place types. Because the typology is based on judicial interpretations in public forum case law the ability to test or validate the research findings is somewhat limited to the adjudication of campus speech conflicts in campus places. Visual Representation I used photographs and images of campus place types to provide visual representations of the public fora in the dissertation. The Typology as an interdisciplinary place typing method is also a model to communicate the connection between the public fora and place types in visual and typological formats The use of 443

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images in this research is designed to expand awareness of the visual appearance of public fora to counter the lack of visual representation in traditional one-dimensional legal opinions that are contained in casebooks and legal reporters. In particular, the Campus Place Public Forum Typology is a visual way to inform individuals and institution about the relationship between campus place-types and public forum categories. The Typology as a place-typing method systematically identifies the imaginal relationship between the U .S. Constitution and physical places The visual representations illustrate and to reinforce the ability to apply the Typology to any campus place-types which can create a uniform approach to generate a place-typing system to identify and communicate legal place archetypes and iconic campus place types when determining locations and levels of speech rights on campuses across the United States Applicability to Other Campuses The research method used in this dissertation as a place-typing process is designed to apply to other public higher education campuses across the country The research method of formatting the place-typing assessments with multidimensional characteristics of campus places to generate the typological information allows adaptability to the different types of campuses. In addition the research findings from the judicial opinions revealed that the judicial interpretations of campus place-types did not distinguish the public forum analysis by the campus category or type of place. 444

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Accordingly, the plaza on a commuter campus was interpreted in the same manner as the plaza on a residential research campus. However, the context of where the campus place-types were located is a factor in the judicial interpretation. The judicial interpretation of a campus place-type that is near the edge of campus will be compared to the adjacent property ifthere is not a significant architectural distinction between the two types of places. Design of Campus Place The research informs campus officials and planning professional on the specific constitutional implications in the design and planning of physical places on a campus. The typology also informs planning professional inside and outside of academia of how the campus place-types are interpreted as public fora. A noteworthy outlook in the literature that is supported by analysis in the case law was the distinction between space and place. The individual interpretations of campus place-types focus on the theoretical concept that place is embedded with person values while institutional interpretation of campus place-types is reflects a traditional concept of space. The institutional approach to interpreting space is as interior locations that are classified and inventoried to use for institutional purposes to fulfill the mission of the campus. Tuan 's ( 1977) distinction between space and place is an enlightening assessment of social space that reinforces the need for designers and planners of campus outdoor places and landscapes to understand the legal implications in their 445

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design of campus places. Tuan 's ( 1977) asserts that space as medium allows movement; while place reflects as pause in movement allowing for the transformation into a place. In Mason v. Wolf(2005), Judge Figa's interpretation of the flagpole paralleled Tuan's space/place distinction when Judge Figa acknowledged that wider design of the sidewalks in the flagpole area signified a place that was intended for public access, not just to facilitate movement in and out ofthe campus buildings. The Typology, while only reflecting the judicial interpretation of campus place-types, is a tool to use in future research in the design of campuses and relationship to the conflicting interpretations of campus place-types between institutional and individuals in campus speech conflicts. This is another subject I will address in the recommendations for future research. Campus Space Management The judicial opinions analyzed in this research provide information on "fair notice" of the constitutional case law in public forum. The Campus Place Public Forum Typology provides a practical and theoretical foundation for policy considerations and guidelines for the management of campus places for speech activity. This research provides campus administrators with a guide on how to create a campus space management index that includes public forum categories and standard in the classification, inventory, and management of campus space. This research can inform practical applications of campus space management and future research on 446

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balancing the institutional management of campus space without violating an individual's First Amendment Rights. The research bridges the gap in the standard campus space management guidelines by creating a classifications system for external campus space. The key principle in the management of space is the concept that space is identified, classified, inventoried based on form, use and purpose. The Typology, as a place-typing standard is a written and visual representation of public fora types that the campus administrators can use to identify, classify, and inventory campus place-types as public fora. The case law and Typology can guide the campus administrator on how to manage the campus places within constitutional standards ofthe Public Forum Doctrine. The campus administrators can also use this research to guide their space management responsibilities by establishing a practical approach to understand the theoretical differences between space and place to mitigate conflicts between a broad range of individuals while providing for the safety of all users. Place Identity and Negotiation of Campus Conflicts This research has implications on how to negotiate differences between the parties over use of the campus place based on place identity. This Typology can assist campus administrator's management of campus place-types by identifying the difference in the theoretical concept of space and place in order to negotiate a speech conflict. This understanding includes the assessment of campus place-types as multidimensional places and the differences in individuals and institutions 447

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interpretation of campus-place types. The primary conflicts over the interpretation of campus place-types were fundamental difference in how the different sides not only interpreted the campus place-types but how they understood the concept that the campus was a multidimensional place. The main conflict between the opposing parties in the court cases were based on differences in the interpretation of values associated with their place identity and image of the campus. The fundamental distinction between the institutional and individual interpretations of outdoor areas in speech conflicts is that institutions identify those locations as space, not place The management of space is a rational approach to maintain and promote the efficient use of areas bounded by walls or imaginary lines to fulfill the campus mission. The individual in the public forum cases consistently interpreted the entire campus as an imaginal place an emotional place for the exercise of public expression and sharing ofbeliefs. They asserted that the campus provided a sense of place as a part of the broader community and did not recognize or acknowledge the campus as a separate category or type of public place. The opposing interpretations are analogous to BeVier's (1992) theory that the public forum is balanced between two conflicting interpretations ofthe First Amendment and public fora. The individual advocates that the campus is subject to the enhancement model where the freedom of speech is a positive right in which the government must provide places for the public expression. In contrast, the campus administrators asserted an image ofthe campus as a highly uniform institution that 448

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was organized around the efficient use of space to support the educational mission of the campus. The institutional interpretation of the campus focused on the institutional identity of the campus as a conceptual place of space that was maintained by a central authority. The institutional response supports the distortion model where the campus is a place of negative rights where the government cannot violate the freedom of speech but it does not have to provide the places to accommodate all people to exercise their speech expression. This research illustrates that the campus is more than a set of interconnecting space within a defined boundary. The campus, like a city, is a sense of place that embodies for each individual a personal phenomenon of experiences that occur within physical places (Chapman 2006). Campus administrators and campus speakers can employ the typology to discuss and negotiate campus speech conflict issues as a communication tool to identify campus place types as public fora. Limitations of the Research The research method had several limitations including that I designed this research as a case study on public forum case law. The legal research was limited further to public forum case law regarding the use of physical places as public fora on higher education campuse. In this research it was a necessary to isolate the case law review of one area of law, fact pattern, and type of place in order to analyze, classify and compare the content of the court cases and judicial interpretations. 449

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I narrowed the case law search to court cases that included the words campus and public forum in their judicial opinions. I did not examine First Amendment speech issues involving the censorship of student newspapers, art exhibits, student fees, cyberspace, or other public forum issues not directed at examining physical places on higher education campuses. Also, this research addressed only public higher education campuses in the United States, because application of the U.S Constitution First Amendment freedom of speech public forum applies only to public property in the United States. Plus, I limited the research to higher education campuses and did not examine judicial interpretations of other types of public property in public forum case law (e.g., city property, military bases, hospitals, airports, prisons). I limited the examination of constitutional case law to only specific factual circumstances that had been adjudicated in federal court. I reviewed newspapers articles, websites, and other news related mediums reporting on campus speech disputes; and I examined campus places that had been sites of conflict over the use of physical place. Nevertheless, I only included in this dissertation conflicts that had generated a federal district court or appellate court case that had been resolved through judicial decision and documented in judicial opinion. I also focused the primary analysis and representation of campus place-types as public fora on the Auraria campus. While the examination of a single site is typical research limitation in a qualitative case study, the Auraria campus is a place type that 450

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has a unique history as a higher education campus. Despite the limitations, this research was designed to generalize the findings to another campus The research method and resulting T y pology was developed from the content analysis of the selected cases from across the federal circuits. A limitation of this research is also based on the constitutional principle that the public forum does not apply to speech conflicts on private property. The place assessment could be applied to non-campus places as another type of public property. While private higher education campuses as private property are not subject to the provision of the First Amendment's public forum doctrine the assessment of campus place-types on private campuses can be used to identify the types of speech conflicts in place-types on private campuses. Recommendations for Future Research I have recommendation for future research in several areas that are associated with interpretation of different types of place. First the traditional legal research approach to case law review fails to address the contextual influence on the judicial analysis of legal issues Additional research is needed to examine the reliability of the Typology by conducting a qualitative research method that focuses on federal judges. A research method to evaluate the accuracy of the findings in this research would draw on federal judges to conduct hypothetical public analysis of campus place-types to identify the multidimensional character of campus place-types as public fora. This 451

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research would have the federal judges use the place-typing methods to test and identify how they would classify the place-types in the Typology as public fora. This research on judicial interpretations is a subset of a broader critical examination on the subjectivity of judicial decision making in court proceedings. A question that arose in my content analysis of the judicial opinions concerned the amount and type of visual aids that judges reviewed in the court proceedings to inform their interpretation of the campus place. In two specific cases, the judges describe visiting the campus to observe and walk the site as part of the court proceedings. The research question I propose addresses the objectivity of the judge's physical presence at site compared to the majority of public fora cases where the judge does not or cannot visit the site. This research question addresses the influence of the different types of visual representation in the judicial interpretation of campus place-types. The second research question also address the objectivity of judicial interpretations by examining if a judges experiences of as a student campus life influences their judicial interpretation of campus place-types. Second, the content analysis identified that the fundamental differences in the interpretation of the campus by individuals and institutions was based on place identity. The differences in the interpretations of campus places between individuals and institutions to better understand the conflict as a difference in the interpretation of place instead of a legal conflict. Additional research is needed to apply the Typology 452

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to investigate how the interpretation of campus place-types reflects the images, place identity, and perception First Amendment an individual's experiences based on the campus design. This question emerged based on the statements that an individual's asserted that their constitutional rights were violated when they were denied access to campus places by campus officials. Third, the current format of case law review is not a sufficient research and communication system to identify and describe public fora The lack of visual representations in my case law research of over I 00 cases to only find 3 sets of images in the judicial opinions was an additional reason for the Typology to contain visual representations of campus place-types. Increasing the research on how case law and judicial opinions can be enhanced to increase the visual evidence to communicate the judicial interpretations in both written and visual mediums. Enhancing the conventional case law format improves the communication of "fair notice" of judicial decision and case law The case law format is the only means used to identify and communicate the judicial interpretations of decisions in public forum cases. The case law format needs to be refined by enhancing the written text of judicial opinions with visual images of the subject areas in judicial decisions and court rulings. Fourth, use the Typology to assess public and private noncampus places. The research focus has been on studying the campus in the context of the broader contextual identification of the campus in the context of the market place of ideas in order to examine link between constitutional rights and the campus. However, the 453

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Typology, as a place-typing method to analyze the judicial interpretations of place has a broad range of applications in legal research and place theory. Advocates for public places can use the Typology to promote the inclusion or conservation of public places in campus design and development. Concluding Thoughts I became interested in the developments on the Auraria campus when beginning my graduate work there at the University of Colorado Denver in 1988. The complex history of the Auraria location was an intriguing backdrop for examining the public forum at higher education campuses. The Mason v. Wolf(2005) case and resultant circumstances further stimulated my interest in the public forum. Since Friday April 12, 2005, the Auraria campus has undergone physical changes at its flagpole area. The flagpole has been removed and replaced by a concrete block; and campus activities have been moved to the Tivoli Commons at the intersection ofLarimer Street and the Tenth Street Mall, where stands a set of flags. Creating the Tivoli Commons was an intentional placemaking decision by the AHEC administration to transition the focus of campus activities from the Tenth and Lawrence Intersection by moving the flagpole, as a prominent place marking feature, to the Larimer Plaza. Like public forum jurisprudence, the Auraria campus is continually evolving, as it is impacted by activities on and around the urban campus. The campus administrator has interpreted the campus as a material place with conceptualized 454

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spaces for social activities and interaction. Such changes are sought to retain and build on Auraria's historic relationship with Denver. Identifying the constitutional implications of managing and typing campus places for public speech and expression has created a bridge between campus-space management and the promotion of speech on campus. Questions regarding the campus as a type of public forum will continue as changes to the Auraria campus transition this place from an educational enclave to more of an urban commercial corridor that is open for multiple uses. 455

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APPENDIX A SUMMARY OF FEDERAL CASES Federal Cases = 51 Table ofCases Cases Appeal District 1st Circuit Massachusetts 1 0 1 Puerto Rico 1 0 1 1st Circuit Sub Total 2 0 2 2nd Circuit New York 5 1 4 2nd Circuit Sub Total 5 1 4 3rd Circuit Pennsylvania 3 1 2 3rd Circuit Sub Total 3 1 2 4th Circuit Maryland 2 I I Virginia 2 2 0 West Virginia 1 1 0 North Carolina 1 1 0 4th Circuit Sub Total 6 5 1 5th Circuit Texas 9 3 6 Mississippi 1 0 1 5th Circuit Sub Total 10 3 7 6th Circuit Ohio 2 0 2 Kentucky 1 0 I Tennessee 2 0 2 6th Circuit Sub Total 5 0 5 456

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Summary of Federal Cases (Cont.) Table of Cases Cases Appeal District 7th Circuit Indiana 1 1 0 Illinois 1 0 l 7th Circuit Sub Total 2 1 1 8th Circuit Arkansas 1 I 0 Nebraska 2 1 I Minnesota 1 1 0 8th Circuit Sub Total 4 3 1 9th Circuit Arizona 1 0 1 California 3 0 3 Oregon 1 1 0 Washington 1 1 0 Montana 1 1 0 9th Circuit Sub Total 7 3 4 1Oth Circuit Colorado 2 0 2 Utah 1 0 1 1Oth Circuit Sub Total 3 0 3 11th Circuit Alabama 2 1 1 Georgia 1 0 1 Florida 1 1 0 11th Circuit Sub Total 4 2 2 Total 52 20 32 457

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APPENDIXB INVENTORY OF FEDERAL CASES # rcuit Y ea r Case Cite Court State Campus Access and Visibility Campus Speakers I 6th 5/22 / 1969 Smith v. University 334 F.Supp. N.D Tennessee University of of Tennessee 90 Tenn Tennessee 2 5th 7 / 8 / 1969 Brooks v. Auburn 412 F .2 d Appeals Alabama Auburn University University 1171 University of 3 5th 12/1/ 1969 Stacy v Williams 306 F. Supp. N.D. Missis si ppi M ississ ippi and 963 Miss Mississippi State University Newspaper Solid Rock 478 F. Supp. E.D. Ohio State I 6th 3 / 14 / 1979 Foundation v. Ohio Ohio State University 96 Ohio University 2 5th 4 /3/ 1987 Texas Review Soc. v. 659 F. Supp. W.D. Texas University of Texas Cunningham, 1239 Tex Austin 3 5th 8/10/1992 Hays County 969 F.2d Ill Appeals Texas University of Texas Guardian v. Supple San Marcos Lawns and Plazas University of Utah I lOth 12/ 8 / 1986 Students against 649 F Supp D Utah Utah U of Utah Apartheid v. 1200 Peterson, Students against 2 4th 5 /15/ 1987 Apartheid Coalition 838 F 2d 735 Appeals Virginia U of Virginia v. O'Neil, Auburn Alliance for 684 F Supp M.D. 3 lith 111111988 Peace & Justice v. Alabama Auburn University Martin 1072 Ala 458

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Inventory of Federal Cases (Cont.) Marches and Parades I 1st 3 / 9 / 1990 Cerezo v. Quinones Civil Action D P R Puerto Rico University of 90-1323 Puerto Rico 2 lith 6 / 28 / 2005 E lend v Basham 471 F.3d 1199 Appeals Florida University of South Florida 3 2nd 5/25/2007 Sussman v. 488 F.3d 136 Appeals New York West Point Crawford, Sidewalks and Streets as Campus Borders I 5th 6 / 28 / 2000 Brister v. F au Ikner 214 F3d 675 Appeals Texas University of Texas Austin No. 05-cvColorado School of 2 lOth 3 /23/ 2006 Mason v Trefny 01264 EWND Colo Colorado Mines CBS Enclosed and Interior Places Steps Sabatini v CIVIL I 3rd 7 / 20 / 2000 Reinstein ACTION99-E.D Pa Pennsylvania Temple Law School 2393 Dormitories American Future I 3rd 4/23/1984 Sys. v. Penn State 752 F.2d 854 Appeals Pennsylvania Penn State Univ., 2 4th 9 /19/ 1984 Chapman v. 743 F.2d 1056 Appeals North North Carolina Thomas, Carolina State University 3 2nd 3 / 11/1988 Fox v. Board of 841 F.2d 1207 N .D. New York SUNY-Cortland Trustees, N .Y. Display Cases Bulletin Boards I 8th 7/11/1997 Burnham v. Ianni, 119 F.3d 668 Appeals Minnesota University of Minnesota-Duluth 2 9th 4/12/2001 Giebel v. Sylvester, 244 F.3d 1182 Appeals Montana Montana State University-Northern Television Stations and Theaters Barnstone v. 514 F. Supp. W .D. University of I 5th 12/18/ 1980 University of Texas Houston 670 Tex Houston 2 8th 6/25/1986 Brown v Board of 640 F. Supp. D. Neb Nebraska University of Regents, 674 Nebraska 459

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Inventory of Federal Cases (Cont.) Libraries, Meeting Rooms, and Classrooms Hickok v. Orange 472 F. Supp. S .D. Orange County I 2nd 119/ 2006 County Community New York College 2d469 N.Y. Community College Galiano v. lnst. of 2 9th 1 / 1 /2 008 Governmental No. 07N.D. Cal California University of Studies at the Univ 05557 SBA California Berkeley of Cal., 3 5th 3/19 / 2010 Smith v. Tarrant CV-658-Y N.D Tex Texas Tarrant County County College Dist. College The Campus as a Designated Public Forum for Students Pro-Life Cougars v. 02-20868 Universit y of I 5th 517/2003 67 Fed. Appeals Texas Univ of Houston Appx. 251 Houston 2 5th 9 / 30 / 2004 Roberts v. Haragan 346 F.Supp. N.D. Tex Texas Texas Tech 2d 853 3 5th 5 / 27 / 2005 Justice for All v. 410 F.3d 760 Appeals Texas University of Texas Faulkner, Austin Rock For Life 643 F. Supp. University 4 4th 7/8 /2 009 UMBCv. D.Md. Maryl a nd Maryland Baltimore Hrabowski, 2d 729 County_ ASU Students for No CV 06Arizona State 5 9th 12/11/2009 Life v. Crow 1824-PHXD. Ariz Arizona University MHM The Campus as a Forum for OffCampus-Speakers Spartacus Youth 502 F.Supp. University of I 7th 4 /2/ 1980 League v. Board of N.D. ill Illinois Illinois, Circle Trustees 789 Campus Designated Public Forum for Off-Campus Speakers I 9th 11/ 9/2001 Orin v. Barclay, 272 F.3d Appeals Washington Olympic 1207 Community College 2 lOth 2 /15/ 2005 Mason v Wolf 356 F. Supp D. Colo Colorado Auraria Campus 2d 1147 University of 3 8th 8 /2/2006 Bowman v. White 444 F.3d 967 Appeals Arkansas Arkansas Fayetteville CIVIL 4 3rd 7 /21/ 2007 Marcavage v. W ACTION E.D. Pa Pennsylvania West Chester Chester Univ., NO. 06-CVUniversity 910 Jews for Jesus, Inc. v. No. C 08City College of San 5 9th 1 /12/ 2009 City College of San 03876 MHP N D Cal California Francisco Francisco 575 F. Supp. N.D. Schenectady 6 2nd 517/2009 Davis v. Stratton New York County Community 2d410 N.Y. College 460

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Inventory of Federal Cases (Cont.) Limited Public Forum for Off-Campus Speakers I 4th 5 / 23 / 1985 Glover v Cole 762 F 2d Appeals West Virginia West Virginia State 1197 College 2 4th 1 / 31/1995 Gilles v Torgersen, 71 F.3d 497 Appeals Virginia Virginia Tech 3 9th 10 / 29 / 2004 Milton v Serrata, No C 03N .D. Cal California San Francisco State 4541 CRB University 4 5th 11124/ 2004 Bourgault v. Yudof 316 F. Supp N D. Texas University of 2d411 Tex Texas Arlington University of 5 4th 9 /12/ 2005 ACLU v Mote 423 F.3d 438 Appeals Maryland Maryland College Park 6 7th 2114/2007 Gilles v. Blanchard 477 F.3d 466 Appeals Indiana Vincennes University 7 6th 6 / 27 / 2007 Gilles v. Miller 501 F. Supp W.D Ky Kentucky Murray State 2d 939 University 8 6th 6 /18/ 2008 Gilles v. Garland 281 Fed. Appeals Ohio Miami of Ohio Appx 501 9 lith 3 /15/ 2010 Bloedorn v Grube 609CV055 S D Ga Georgia Southern Georgia University Public Forum Not a Shield for Disruptive Conduct CIV-82W.D. State University of I 2nd 12/11/ 1986 Rosenfeld v Sample, 490E, CIVN .Y. New York New York at 82-491E Buffalo 2 9th 7114/ 1999 Souders v Lucero 196 F 3d Appeals Oregon Oregon State 1040 University 3 1st 12/12/ 2001 Greenberg v NO. 01-CVD Mass Massachusetts Westfield State Woodward 10166-GAO College 4 8th 6 /18/ 2003 Putnam v Keller 332 F 3d 541 Appeals Nebraska Central Community College 5 6th 7 / 5 / 2005 Wilson v Johnson 247 Fed. Appeals Tennessee University of Appx. 620 Tennessee 461

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