School Discipline And Retaliation Claims Addressed By Ninth Circuit

An outspoken conservative student was properly disciplined for harassment but stated a First Amendment retaliation claim against faculty and administrators, according to a recent opinion of the United States Court of Appeals for the Ninth Circuit.

At all times relevant to this suit, Neil O’Brien was a student at California State University Fresno (“Fresno State”), where he was an outspoken political conservative and critic of the university. In May 2011, O’Brien confronted and videotaped two professors in their offices, questioning them about a poem that had been published in a supplement to the student newspaper. After disciplinary proceedings, the university found that O’Brien had violated the Student Conduct Code’s prohibition on harassment and intimidation that poses a threat to others. The university imposed sanctions. O’Brien brought suit in district court against several faculty members and administrators, alleging violations of his constitutional rights including those protected by the First Amendment.

Facts alleged in the suit

Plaintiff Neil O’Brien enrolled as a junior at Fresno State in the fall semester of 2010 to pursue a degree in recreation. O’Brien, who describes himself as a “constitutional conservative,” quickly involved himself in political advocacy on campus. He formed the Fresno chapter of the student organization Young Americans for Liberty; he organized events for the Central Valley Tea Party; and he frequently attended student government meetings.

O’Brien soon became an outspoken critic of the Fresno State faculty and administration. He particularly objected to the university’s support for the student body president, an undocumented immigrant, and to the administrators’ endorsement of the DREAM Act. O’Brien began a website on which he posted information he had discovered about the student body president on the internet and through IRS records searches. He also posted criticism of Fresno State’s separate graduation ceremony for Latino students. He filed public records requests to obtain information on administrator salaries and other issues, and he spoke up at student government meetings. He learned that his records requests were “reported all the way up to” then-university president Dr. John D. Welty. 

In response to the activities just described, university officials monitored and interfered with O’Brien’s activities. During O’Brien’s first year at Fresno State, Dr. Carolyn Coon, Assistant Dean of Student Affairs, “requested that students and other faculty members gather information and complaints to use against” him. The director of alumni relations sent emails to other administrators, including the university’s communications director, requesting that they “do something” about O’Brien and his website. In the fall of 2012, university officials deleted some of O’Brien’s posts from Facebook pages that were “operated and managed by university officials” and “permanently block[ed] him from posting” about certain issues on the pages while, at the same time, allowing the posts of “pro-radical left-leaning view points in support of [the student body president] and other leftist posts to remain.”

He had confronted two professors in their offices over concerns about a published poem

O’Brien approached Dr. Torres’ open office door, turned on his video camera, and asked Torres if he had approved of the publication of the poem. Torres refused to speak to him. O’Brien “calmly insisted on speaking to Torres about the poem.” Torres then picked up the phone and called campus police. O’Brien next went to the open door of Dr. Lopes’ office, with his video camera turned on, and asked her the same questions. She, too, refused to answer, stating that she did not want to talk to him. When O’Brien insisted, she closed her office door and called campus police. Torres and Lopes subsequently filed complaints with the Fresno State campus police. Dr. Luz Gonzalez, Dean of the Social Sciences Department (of which the CLS Department is a part), also filed a complaint with the campus police, even though she had not been present during the videotaping incident. O’Brien provided to the campus police a copy of the videotape he had made while confronting Torres and Lopes.

As to school discipline

We…conclude that § 41301(b)(7) is neither unconstitutionally overbroad nor vague. Rather, it permissibly authorizes California State University branches to discipline students who engage in harassment or intimidation that threatens or endangers the health or safety of another person in the university community…

Taking the allegations in the [First Amended Complaint]  as true, we conclude that Freeman and Oliaro reached a permissible conclusion. Professors at work in their personal offices do not generally expect to be confronted without warning by a student asking hostile questions and videotaping. If the uninvited student refuses to cease hostile questioning and refuses to leave a professor’s personal office after being requested to do so, as O’Brien admits occurred here, the professor may reasonably become concerned for his or her safety. O’Brien’s behavior as described in the FAC could be considered “harassment” or “intimidation” and threatening under an objective reasonableness standard. It was thus permissible for Fresno State to impose discipline on O’Brien for this conduct under its reasonable and viewpoint-neutral regulation.

But as to retaliation

O’Brien named seven defendants in this case. We hold that the FAC states a First Amendment retaliation claim against five of them — Vice President Oliaro, Dean Coon, Dean Gonzalez, Dr. Torres and Dr. Lopes. We hold that the FAC has not alleged sufficient facts to state a claim against the remaining two — President Welty and Dr. Jendian — who were essentially peripheral figures with insufficient connection to the critical events to be held responsible for actions taken against O’Brien.

We caution against overreading our opinion. The First Amendment does not give a free pass to students who violate university rules simply because they can plausibly show that faculty or administrators disapprove of their political views. Our holding is by no means intended to disable university faculty and administrators from imposing discipline on students whose misconduct is preceded by or accompanied by the expression of opinions with which faculty members or administrators strongly disagree. Specifically, our holding is by no means intended to protect from discipline students whose speech or conduct may reasonably be seen as threatening or constituting a danger to members of the university community. Indeed, as we have indicated above, O’Brien’s conduct in the videotaping incident in this case was appropriately subject to discipline. The only issue in dispute is whether defendants imposed that discipline as retaliation for O’Brien’s protected activity.

We hold that a retaliation claim has been stated because the allegations of the FAC, if believed, could reasonably support a conclusion that faculty members and administrators at Fresno State not only disagreed with the expressed political views of O’Brien, but also sought to punish and muzzle him in retaliation for his expression of those views. That is, if the facts alleged in the FAC are believed, a reasonable jury could conclude that defendants sought to punish O’Brien for his expression of his opinions, and to deter and even prevent him from engaging in speech and conduct protected by the First Amendment. In sum, the allegations in the FAC make it at least “plausible” that defendants’ actions were substantially motivated by opposition to O’Brien’s protected speech and expressive conduct.

The defendants may seek summary judgment on qualified immunity grounds. (Mike Frisch)