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  • Date:

    Manco v. St. Joseph’s Univ. Et, al. (E.D. Pa. Aug. 14, 2024).

    Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former St. Joseph’s University professor sued the University and several students under multiple theories following termination his of employment. The University placed Plaintiff on administrative leave, investigated, and ultimately removed from his visiting faculty role for “violations of University policies” after screenshots of his anonymous tweets circulated online, were sent to the University’s Title IX Coordinator, and a student tweeted at the University “are you gonna fire [Plaintiff] who has done nothing but contribute to a hostile learning environment with his racism, sexism, and transphobia??????” Various defendant groups filed motions to dismiss, including the student who posted the tweet who argued that she was entitled to absolute privilege “as she conveyed information that commenced an investigation pursuant to federal statute or regulations.” The court declined to dismiss claims of defamation, false light, and tortious interference, reasoning that although the student’s emails and direct correspondence with the University during the pendency of the investigation were entitled to immunity, her “general tweet” towards a private institution lacked intent to commence an investigation. The court also found that her tweet was potentially defamatory as it may be read to imply that the professor is “a racist, sexist and/or is transphobic.” The Court granted the student’s request to dismiss Plaintiff’s claims of conspiracy and intentional infliction of emotional distress. 

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | Employee Discipline & Due Process | Faculty & Staff | First Amendment & Free Speech | Retaliation | Social Media

  • Date:

    Frankel, et, al. v. Regents of the Univ. of Cal., et, al. (C.D. Cal. Aug. 13, 2024).

    Order granting-in-part Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, Jewish students attending the University of California, Los Angeles, (UCLA) asserted multiple claims for violations of their federal and state constitutional rights including under the Free Exercise Clause after third-parties physically excluded them from portions of the UCLA campus “because they refused to denounce their faith.” The Court analyzed the factors attendant to the Free Exercise claim finding that Plaintiffs are likely to succeed on the merits of the claim, as they were “exclu[ded] from campus resources while other students retained access.” It found that “given the risk that protests will return in the fall … Plaintiffs are likely to suffer an irreparable injury absent a preliminary injunction.” Pursuant to the injunction, “if any part of UCLA’s ordinarily available programs, activities, and campus areas become unavailable to certain Jewish students, UCLA must stop providing those ordinarily available programs, activities, and campus areas to any students.” On August 14 Defendants filed a Preliminary Injunction Appeal. 

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Student Speech & Campus Unrest | Students

  • Date:

    People for the Ethical Treatment of Animals v. Tabak (D.C. Cir. July 30, 2024)

    Opinion reversing and directing entry of judgment in favor of the appellants. Plaintiff-appellants, People for the Ethical Treatment of Animals (PETA) and two animal rights activists who “frequently commented on the official Facebook and Instagram pages of appellee National Institutions of Health (NIH), criticizing NIH’s funding of research conducted on animals,” brought First Amendment claims against NIH challenging its use of keyword filters “to filter out comments containing words that frequently appeared in posts that it considered ‘off-topic,’ such as the terms ‘animal,’ ‘testing,’ and ‘cruel.’” The district court granted summary judgment in favor of NIH, “holding that NIH’s keyword filters were viewpoint-neutral and reasonable restrictions in a limited public forum.” In reversing and directing summary judgment in favor of the appellants, the D.C. Circuit held that “NIH’s off-topic restriction, as currently presented, is unreasonable under the First Amendment,” finding that (1) NIH’s assertion of its present list of off-topic keywords “defies common sense” in that a substantial number of the posts affected “either directly depict animals or discuss research conducted on animals;” (2) NIH provided no definition of “off-topic” to guide either its moderators or the public and no line at which repetitive off-topic posts become unacceptable; (3) its protocol was inflexible and unresponsive to the context by providing “little, if any, ability to ask NIH to restore” filtered comments; and (4) its position was “further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants’ viewpoint.”  

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Research | Social Media

  • Date:

    Viewpoint Neutrality Now! v. Bd. of Regents of the Univ. of Minn. (8th Cir. July 25, 2024)

    Opinion affirming summary judgment in favor of the University. Plaintiffs, a student organization at the University of Minnesota-Twin Cities Campus and two individuals, sued the University alleging that the University’s 2011 allocation of lounge space in its student union building (renovated in 2013) to registered student organizations (RSOs) representing cultural minorities for “cultural centers” was viewpoint discrimination, or at least vested unbridled discretion in the University officials who allocated the space, in violation of the First Amendment. In affirming summary judgment in favor of the University, the Eight Circuit held that while the designation of space for RSOs representing cultural minorities was a content-based restriction on the use of the limited public forum, the process by which the space was allocated was reasonable, focused on status with no evidence suggesting the RSOs advocated a particular viewpoint, and left ample alternative channels in the form of space available by reservation or designated for common mixed use. It also affirmed that plaintiffs’ assertion of the unbridled discretion doctrine was misplaced because the University’s one-time space allocation decision in 2011 provided for space to be reassigned only if an occupant failed to comply with policies for two years in a row and did not constitute an annual reevaluation of space allocations.   

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Student Organizations | Students

  • Date:

    ACE Issue Brief on Preparing for a Potentially Tumultuous Fall on Campus (July 31, 2024)

    American Council on Education (ACE) Issue Brief on “Preparing for a Potentially Tumultuous Fall on Campus: A Conversation with a Former President, a General Counsel, and a Campus Police Chief Who Have Been There Before.” In the Brief, ACE’s Peter McDonough facilitates a discussion amongst Frederick M. “Fred” Lawrence, Stephen S. “Steve” Dunham, and Steven J. Healy, who offer strategies to prepare for and respond to possible campus unrest during a Fall semester that will include the anniversary of the October 7th attack in Israel and a contentious U.S. presidential election. The Brief covers concerns surrounding safety, anti-harassment, and free speech and academic freedom and recommends campuses prioritize institutional mission, civil discourse, and building trust through campus engagement to simultaneously support the community and navigate heightened political criticism.   

    Topics:

    Campus Police, Safety, & Crisis Management | Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Student Speech & Campus Unrest | Students

  • Date:

    Flores v. Bennett (E.D. Cal. Aug. 2, 2024)

    Entry of Permanent Injunction, Judgment, and Order in favor of Plaintiffs. Plaintiffs, three individual students at Clovis Community College and the Young Americans for Freedom at Clovis Community College (YAF), sought a preliminary injunction in their First Amendment challenge to the College’s Flyer Policy after officials permitted them to post pro-life flyers on designated “Free Speech Kiosks” but not on bulletin boards reserved for student materials. The policy permitted Student Center staff to withhold posting permission for materials that contain “inappropriate or offensive language or themes.” The parties entered into a Settlement Agreement resulting in State Center Community College District and its subsidiary colleges and educational centers being “permanently enjoined from enforcing, by policy or practice, any unlawful viewpoint-discriminatory, overbroad, or vague regulation, or prior restraint, on the content of the speech of recognized student clubs, including but not limited to bans on ‘inappropriate’ or ‘offensive’ language; using or further instituting the use of the prior Poster/Flyer Instructions; and mandated to adopt and implement the Replacement Posting Procedure.” 

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Student Organizations | Students

  • Date:

    Jorjani v. N.J. Inst. of Tech. (D. N.J. July 29, 2024)

    Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former full-time philosophy lecturer at New Jersy Institute of Technology (NJIT), brought a First Amendment retaliation claim against the Institute when his contract was not renewed following revelations that he had founded an organization called the “AltRight Corporation” and published views advocating white supremacy. An investigation conducted while he was on paid administrative leave found that he had violated the New Jersey ethics code by not disclosing “that he was a founder, director, and shareholder of the AltRight Corporation,” he had inaccurately asserted that a New York Times video of him discussing his views had been misleadingly edited, and he had cancelled 13 classes in Spring 2017 without informing his department while “exhibit[ing] a clear pattern of non-responsiveness” to communications throughout his employment. In granting summary judgment in favor of NJIT, the court held under the Pickering balancing test that plaintiff’s speech “does not merit protection under the First Amendment,” noting particularly that “Plaintiff’s speech did not merely cause offense—it disrupted (and was likely to further disrupt) NJIT’s administration, interfered with NJIT’s mission to effectively provide a hostile-free learning environment for its students, and impeded Plaintiff’s ability to effectively perform his teaching duties.” 

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

  • Date:

    Doe v. Univ. of N. Tex. Health Sci. Ctr. (5th Cir. July 16, 2024)

    Opinion affirming summary judgment in favor of the defendants. Plaintiff, a former medical student at the Texas College of Osteopathic Medicine at the University of North Texas Health Science Center who was permitted to take a medical leave of absence, brought due process and equal protection claims against multiple officials in their individual capacities after he was dismissed from the program for failure to meet the conditions of his return. The district court granted summary judgment in favor of the University. In affirming on his due process claim, the Fifth Circuit held that three separate emails were constitutionally sufficient notice of his academic dismissal, notwithstanding plaintiff’s assertion that the University should have known that he was not checking his email. In affirming summary judgment on his equal protection claim, it held that because he failed to identify a similarly situated student who was treated differently, he was unable to show that the officials discriminated against him based on a perception of a mental disability.   

    Topics:

    Academic Performance and Misconduct | Constitutional Issues | Due Process | Students

  • Date:

    Moody v. NetChoice, LLC (U.S. July 1, 2024)

    Opinion vacating the judgment of the Fifth and Eleventh Circuits and remanding. NetChoice, a trade association that includes Facebook and YouTube, brought facial challenges to statutes enacted in 2021 by Florida and Texas regulating content moderation by large social-media companies “restricting covered platforms’ choices about whether and how to display user-generated content to the public” and requiring platforms to give individualized explanations of their reasons for content-moderation choices. The district courts granted preliminary injunctions. The Eleventh Circuit affirmed, while the Fifth Circuit reversed. The Supreme Court vacated, holding that the courts below failed to properly assess the scope of the facial challenges to the laws at issue, instead addressing how they applied to Facebook and YouTube in particular. The Court clarified that when “platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices” entitled to First Amendment protection. It further held that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”   

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Social Media

  • Date:

    Loper Bright Enterprises v. Raimondo (U.S. June 28, 2024)

    Opinion vacating the judgment of the D.C. and First Circuits and remanding. Petitioners in this and the related case, Relentless v. Department of Commerce, challenged a National Marine Fisheries Service rule requiring operators of fishing vessels in the Atlantic herring fishery to cover the cost of carrying federal observers on their vessels to collect data to protect against overfishing. The Magnuson-Stevens Fishery Conservation and Management Act provides for the observers, but it is silent as to whether the Service may require vessel owners to pay for the cost. Both districts granted summary judgment in favor of the Service, and the Circuit Courts affirmed, affording the agency deference under the doctrine announced in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (U.S. 1984) requiring courts reviewing agency regulation that fills a gap where the authorizing statute is either silent or ambiguous to defer to the agency’s interpretation so long as that interpretation is based on a permissible construction.  The Supreme Court vacated the judgment of the Circuit Courts and overruled Chevron, finding that the Administrative Procedure Act (APA) “incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions” and that Chevron “cannot be squared with the APA.” It held that “courts need not and under the APA may not defer to agency interpretation of the law simply because a statute is ambiguous.”   

    Topics:

    Constitutional Issues

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