ASU System Turns To Expensive DC Law Firm In Free Speech Case
A senior lawyer costs the Arkansas State University System approximately $ 116,000 for work done over a two-month period to defend against a petition in the United States Supreme Court.
David C. Frederick, a Washington, DC-based attorney, filed a brief last month opposing a demand by legal group Alliance Defending Freedom to have the nation’s highest court consider a liberty trial expression rejected in 2019.
The Supreme Court has yet to say whether it will grant a full review.
“We have chosen a law firm with significant experience in handling US Supreme Court cases to ensure that the university is properly represented,” said Jeff Hankins, a spokesperson for ASU System, in an email. The system issued invoices documenting attorney fees under the state’s public disclosure law.
Alliance Defending Freedom says questions remain unresolved after the 8th Circuit Court of Appeals upheld the dismissal of a lawsuit brought by an ASU student and a section of the conservative group Turning Point USA.
In October 2017, Ashlyn Hoggard and a representative from Turning Point were informed by an ASU administrator that they could not have an information table in an area reserved for “drop off” by registered student organizations.
Despite the policy changes cited in the U.S. District Court order dismissing the case in 2019, the Defending Freedom Alliance is seeking a Supreme Court review of the immunity standard for public university officials, especially in First Amendment cases, and denies immunity to ASU officials.
An 8th Circuit opinion states that “the application of the filing policy against Hoggard on October 11, 2017 was unreasonable and unconstitutional”, but that the defendants named in the lawsuit – including members of the ASU board of directors – “may reasonably not have understood this at the time.”
The Defending Freedom Alliance, which describes itself as a faith-based nonprofit, has won victories in the United States Supreme Court, most recently in a case tried in March.
As reported by the Associated Press, the advocacy group argued that Georgia Gwinnett College, even after changing a policy on free expression areas, should still be held accountable for its past policies. The Supreme Court restored a lawsuit that had been dismissed by a lower court.
The 27-page brief submitted in April by Frederick on behalf of the ASU defendants indicates that the case “concerns an isolated episode in which ASU officials enforced a now repealed policy limiting the ability to create tables by outside a student union to registered student organizations. “
The brief also states that the case is “neither the appropriate vehicle nor sufficiently important to merit a review by this Court, let alone to establish the transformative and consequential doctrinal changes that the petitioner requests”.
Frederick is a partner at the law firm of Kellogg, Hansen, Todd, Figel & Frederick and has argued more than 50 appeals in the United States Supreme Court, according to a biography on the firm’s website.
A February letter outlining the deal between Frederick and the ASU system says he is charging $ 1,265 an hour, with other lawyers at the firm to help with the case by charging less. In the letter, Frederick states that he is offering a 15% reduction on hourly rates due to the system’s status as a public entity.
Arkansas-based attorneys have already been hired to defend against the lawsuit, including Jeffrey W. Puryear with the firm Jonesboro Womack, Phelps, Puryear, Mayfield & McNeil and Rodney P. Moore with Wright, Lindsey & Jennings, based in Little Rock.
The letter of understanding was issued under the state’s Public Disclosure Act, as was a May 3 email from Brad Phelps, General Counsel for the ASU System, recommending payment of an invoice from the Frederick’s company.
“I hope this will be the end (or the end),” Phelps wrote.