Student Case Law
While FIRE has won numerous victories this year in working to protect individual rights on college campuses, 2011 was a mixed year for the defense of students’ rights by the courts. Importantly, this year highlighted divergent theories of the First Amendment rights of students off campus. While some courts have held that schools are limited by the First Amendment in what they can regulate off campus, other courts this year held that things students say off campus can have almost unlimited disciplinary consequences on campus. This is a troubling trend, outlined in several cases below.
In June, the United States District Court for the District of Colorado held in Mink v. Knox, 2011 U.S. Dist. LEXIS 59380 (D. Colo. 2011) that a prosecutor who authorized an illegal search of the home of a student was not entitled to qualified immunity and was thus personally liable under 42 U.S.C. § 1983 for her unconstitutional actions. We have blogged about the implications of this case here on The Torch, but let’s quickly revisit the facts of the case: A student posted a satirical photo of a professor online, never expecting to have his home searched, to have his computer seized, or to spend a week in jail. All of this happened, however, as a result of one overzealous prosecutor. Thankfully, when a government official violates a “clearly established” constitutional right, under § 1983 that official no longer enjoys the protection of Eleventh Amendment immunity, and may be sued in his or her personal capacity and found liable for monetary damages. In this case, the prosecutor should have known better than to violate clearly established First Amendment rights: The United States Court of Appeals for the Tenth Circuit held in Mink v. Knox that it is “clearly established in this circuit that speech, such as parody and rhetorical hyperbole, which cannot reasonably be taken as stating actual fact, enjoys the full protection of the First Amendment and therefore cannot constitute the crime of criminal libel for purposes of a probable cause determination.” This rights violation ended up costing the prosecutor a cool $425,000.
Also in June, twin victories for student speech were handed down by the United States Court of Appeals for the Third Circuit. In the two cases of Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011) and J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011), each of which involved students who were disciplined for creating satirical MySpace profiles mocking their school principals, the Third Circuit held that schools cannot “reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.” The school districts have filed a joint petition for certiorari before the Supreme Court of the United States, and the Court has the opportunity here to advise lower courts as to the scope of First Amendment protections for student off-campus speech.
If the Court takes one or both of these cases, the ensuing ruling would likely impact student rights beyond the K-12 level, as lower courts too often fail to recognize the bright-line distinction between rights enjoyed by K-12 students and rights enjoyed by college students. In July, the Minnesota Court of Appeals held in Tatro v. University of Minnesota that a public university could legitimately regulate off-campus speech (in this case, Facebook posts) where such posts fail the test outlined in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) by “materially and substantially disrupt[ing] the work and discipline of the university.” The court’s ruling not only expands the scope of Tinker off-campus (Tinker, on its facts and in its holding, would seem to only permit speech restrictions “in school”), but it applies Tinker to university students (while the language and facts of Tinker only seem applicable to K-12 schooling). We have blogged about Tatro before. The case is currently on appeal to the Minnesota Supreme Court, and FIRE has joined the amici curiae brief of the Student Press Law Center in support of student Amanda Tatro. This case will be one to watch in the coming year.
Also in July, the United States Court of Appeals for the Fourth Circuit issued its opinion in Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011). We have written about Kowalski before, and, like Tatro, Kowalski demonstrates an expansion of Tinker to off-campus student conduct. In Kowalski, a high school student’s MySpace page was found to violate the anti-bullying code of her school. With no factual analysis, the court simply held that “targeted, defamatory” speech causes “actual or nascent” substantial disruption, as does “unpunished misbehavior,” because that “can have a snowballing effect.” This poor analysis by the Fourth Circuit may give secondary school teachers and administrators carte blanche to regulate speech off campus.
In August, the United States Court of Appeals for the Eighth Circuit decided D.J.M. v. Hannibal Public School District No. 60, 647 F.3d 754 (8th Cir. 2011), once again applying Tinker to regulate off-campus speech. We have previously blogged about this case as well. Student D.J.M. was suspended when another student forwarded instant messages (IMs) to school officials; these IMs were deemed a “true threat” to school security, and thus unprotected by the First Amendment. The court also held that even if the IMs were not true threats, the school could punish the speech as reasonably foreseeable to cause a substantial disruption. Under the rule in D.J.M., if Student B reads something Student A writes on the Internet and Student B acts out, Student A may be punished. This is a dangerous precedent.
Also in August, the United States Court of Appeals for the Ninth Circuit applied last year’s controversial Supreme Court decision in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010) to the case of Alpha Delta v. Reed, 648 F.3d 790 (9th Cir. 2011). In this troubling, but not unexpected application of Martinez, the Ninth Circuit upheld San Diego State University’s denial of official recognition to a Christian fraternity and sorority based upon their violation of SDSU’s non-discrimination policy in requiring that their members share their religious beliefs. We at FIRE have previously noted: “[Under Martinez w]e expect devoutly religious groups-especially evangelical Christian groups-and other belief-based groups holding minority or dissenting viewpoints to be confronted with derecognition. Targeted groups will face a terrible choice: Either relinquish control of the group’s core message and allow all students, regardless of belief, the opportunity to obtain voting membership and leadership positions, or leave campus.” While the precise scope of Martinez is narrow, until the Supreme Court clarifies the issue, universities will continue to trample upon student associational rights.
In October, the Supreme Court denied certiorari in Rock for Life – UMBC v. Hrabowski, 411 Fed. Appx 541 (4th Cir. 2010), avoiding a potentially important issue related to student challenges of sexual harassment policies and other speech codes. The court also ducked the partner case of Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010) back in May. Under traditional rules of “standing,” challenges to university speech codes (even where speech codes are couched as “harassment” codes) are able to be brought by students if the codes might dissuade students from speaking out, “chilling” their First Amendment rights. However, in both of these cases, the respective Courts of Appeals held that the plaintiffs had suffered insufficient injury to allow their cases to go forward, due to the lack of “concrete,” speech-chilling action on the part of university administrations. In Lopez, a professor repeatedly referred to a university code of conduct while he attempted to silence a student about the student’s stance on marriage. In Hrabowski, a university lawyer mentioned in a meeting related to a proposed anti-abortion poster that students might be “emotionally harassed” by the poster-implying that the university prohibitions on sexual harassment might apply to ban it from campus. The facts of both of these cases demonstrate specific actions by a university that could chill the speech of students, but the appellate courts nevertheless found that the student plaintiffs could not challenge the codes that threatened their right to free speech. These decisions on the issue of standing, therefore, represent a hurdle for students seeking to vindicate their First Amendment rights on campus, and are at odds with the relaxed standing requirements typically found in First Amendment cases.
At the close of 2011, the extent to which universities and K-12 schools can regulate the off-campus speech of their students is still very much unsettled. In 2012, we can look forward to the decision of the Supreme Court as to the certiorari petition in Layshock and Blue Mountain, which might provide some much-needed guidance on the issue. Of course, we’ll continue to fight for student rights here at FIRE, and we’ll keep you posted on all legal developments.
Faculty Case Law
Last year saw a handful of important cases related to university faculty First Amendment rights in the courts. Particularly, a number of cases dealt with the application of the United States Supreme Court case Garcetti v. Ceballos, 547 U.S. 410 (2006). Yesterday marked the first day of the annual meeting of the American Association of Law Schools; tellingly, the theme of this year’s meeting is academic freedom, and the AALS notes that after Garcetti, the “zone of protected professorial speech is shrinking.”
We have written about this worrying case many times before. To recap, Garcetti deals with when, precisely, the government acting as employer may regulate its employees’ speech. Breaking with prior precedent, the Garcetti Court ruled that when public employees engage in expressive activity pursuant to their official duties, that speech is normally not protected by the First Amendment. The Court in Garcetti declined to apply its holding to public university professors; Justice Kennedy’s majority opinion states that the Court “need not, and for that reason do[es] not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
Following Garcetti, FIRE and other organizations (most notably, the American Association of University Professors) worried that courts might apply Garcetti to public university professors anyway. Our worrying has proven to be with good reason: Some courts have held that Garcetti applies to public university professors, and other courts have held just the opposite. This is a truly unsettled area of law.
In February, the United States District Court for the Northern District of Illinois issued a disappointing decision in Capeheart v. Hahs, 08-1423, 2011 U.S. Dist. LEXIS 14363 (N.D. Ill. Feb. 14, 2011). FIRE has written about this case before. Loretta Capeheart is a tenured associate professor of justice studies at Northeastern Illinois University (NEIU) in Chicago. She was a vocal anti-war advocate who spoke out in support of members of the Socialist Club of NEIU when they were arrested by campus police for protesting a CIA recruitment event in early 2007. Subsequently, Capeheart was passed up for a promotion, which she attributes to her political involvement. She filed suit in the United States District Court for the Northern District of Illinois. The court later dismissed her lawsuit, applying Garcetti v. Ceballos and holding that her political activity was pursuant to her “official duties” and therefore not protected by the First Amendment. On December 8, however, the United States Court of Appeals for the Seventh Circuit heard oral argument in Capeheart’s appeal, and we hope for a good decision in the coming year. The AAUP filed an excellent amicus brief on behalf of Capeheart, and it can be found here.
On the positive side, in April the United States Court of Appeals for the Fourth Circuit issued a landmark decision in Adams v. Trustees of the University of North Carolina – Wilmington, et al., 640 F.3d 550 (4th Cir. 2011). Professor Mike Adams is a conservative columnist who sued the University of North Carolina-Wilmington (UNCW) when his bid for promotion failed. He sued in the United States District Court for the Eastern District of North Carolina, alleging a number of claims, including First Amendment viewpoint discrimination and retaliation. The suit was dismissed on the university’s motion for summary judgment, but on appeal, the Fourth Circuit reversed the lower court’s dismissal of the First Amendment speech claims, noting that “the district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university.” The Fourth Circuit then held that, as a matter of law, Adams had been speaking as a citizen upon a matter of public concern, and remanded the case to the district court for further proceedings. Joined by the AAUP and the Thomas Jefferson Center for the Protection of Free Expression, FIRE had filed an amici curiae brief with the Fourth Circuit in July of 2010 urging this result. FIRE’s detailed analysis of the ruling is available here.
In October, the United States District Court for the Middle District of Louisiana ruled in favor of Ivor van Heerden, an engineering professor at Louisiana State University (LSU) who claims he was fired as a result of comments he made that were critical of the U.S. Army Corps of Engineers for their design and construction of the levees that broke following Hurricane Katrina. FIRE has written about this case before. When LSU filed a motion for summary judgment, it cited Garcetti for the proposition that his comments about the levees were pursuant to his employment and therefore unprotected by the First Amendment. The court disagreed and denied that part of the summary judgment, noting that, partly because LSU warned van Heerden not to speak with the media, when he did speak with the media it was unauthorized, outside the scope of employment, and thus protected by the First Amendment.
In December, the Idaho Supreme Court upheld the lower court dismissal of Habib Sadid’s lawsuit challenging his firing from his tenured professorship at Idaho State University. We wrote about Sadid’s lawsuit when it was filed in 2009. A representative for the American Federation of Teachers characterized the decision as a “massive win,” because while Sadid’s claims were dismissed, the court held that his speech was not made pursuant to his official position, and that his speech was on a matter of public concern. In so holding, the Idaho Supreme Court was implicitly affirming the lower court’s reliance on the application of Garcetti by the United States Court of Appeals for the Ninth Circuit in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). The AAUP also filed a brief in support of Sadid, also applying Eng.
To wrap up, 2011 demonstrated widely disparate applications of Garcetti. To what extent a public university professor’s speech is protected by the First Amendment remains unsettled. We look forward to a decision by the Seventh Circuit in Capeheart, but unless and until the Supreme Court clarifies its academic exception in Garcetti, things will remain muddled.
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