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  • Date:

    American Association of University Professors v. Marco Rubio (D. Mass. Mar. 25, 2025)

    Complaint for Declaratory and Injunctive Relief. Plaintiffs, the American Association of University Professors (AAUP) , the AAUP Harvard Faculty Chapter, the AAUP at New York University, Rutgers AAUP – American Federation of Teachers, and the middle East Studies Association allege that defendants’ have established an “ideological-deportation policy,” in light of their announced intention to carry out large-scale arrests, detentions, and deportations of noncitizen students and faculty who participate in pro-Palestinian protests and other related expression and association, which plaintiffs aver has far-reaching implications for expressive and associational rights and effectively prevents or impedes plaintiffs’ members from hearing from, and associating with, their noncitizen students and colleagues. Plaintiffs brought this action following the arrest of Mahmoud Khalil, a recent Columbia University graduate. Plaintiffs allege that the ideological-deportation policy violates the First Amendment because it entails the arrest, detention, and deportation of noncitizen students and faculty on the basis of, or in retaliation for, their political viewpoints and because the policy is not narrowly tailored to any compelling government interest. Plaintiffs also allege that defendants’ threats to punish constitutionally protected speech violates the First Amendment and defendants’ threat to arrest, detain, and deport noncitizen students and faculty based on their political viewpoints violates the First Amendment because the threats are coercive and would chill individuals of ordinary firmness from exercising their expressive and associational rights. Plaintiffs further allege that the policy violates the Fifth Amendment because it invites arbitrary and discriminatory enforcement as it fails to give noncitizen students and faculty fair warning as to what speech and association the government believes to be grounds for arrest, detention, and deportation. Finally, plaintiffs allege that the policy violates the Administrative Procedure Act (APA) because it is arbitrary, capricious, an abuse of discretion, and contrary to constitutional right, and because it exceeds defendants’ statutory authority. Plaintiffs request that the Court declare that the policy violates the First and Fifth Amendments and the APA and set the policy aside; enjoin defendants from implementing or enforcing the policy–including, without limitation, through investigation, surveillance, arrest, detention, deportation, or any other adverse action; declare that defendants’ threats to arrest, detain, and deport noncitizen students and faculty based on their political viewpoints violates the First Amendment, and enjoin defendants from continuing to make those threats; and to the extent defendants rely on the security and related grounds of inadmissibility, including the “endorse or espouse” and foreign policy provisions, as the basis for carrying out the ideological-deportation policy, declare that those provision violate the First and Fifth Amendments as applied, and enjoin defendants from applying those provisions.

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Race and National Origin Discrimination | Religious Discrimination & Accommodation

  • Date:

    Statement of Interest Supporting Equal Access to Educational Opportunities and Facilities for Jewish UCLA Students (Mar. 18, 2025)

    The U.S. Justice Department (the Department) filed a statement of interest in the Central District of California as part of the ongoing litigation of Frankel v. Regents of the University of California (C.D. Cal. Aug. 13, 2024) to advance the appropriate interpretation of federal laws that prohibit colleges and universities from discriminating against students because of their religion or national origin. The statement of interest is part of the nationwide efforts to combat antisemitism from the Federal Task Force to Combat Antisemitism.

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | Equal Protection | First Amendment & Free Speech | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | Students

  • Date:

    Jensen v. Brown (9th Cir. Mar. 10, 2025)

    Opinion Reversing and Remanding the District Court’s dismissal order. Plaintiff, a math professor at Truckee Meadows Community College, brought claims in district court against the College and the Nevada System of Higher Education administrators
    alleging retaliation and violation of due process and equal protection after he voiced concerns about a policy change to the math curriculum. After being cut off during the Q&A of a Math Summit on the co-requisite policy implementation, plaintiff
    printed off and distributed a handout discussing his concerns with the new policy. Plaintiff was instructed not to distribute the handout but did so anyways, and alleges he was accused of disobeying his superior as well as being accused of being a bully,
    that his conduct was disruptive, and that he made an error by defying his superior. Plaintiff contends he was pressured to resign from his position as chair and member of another professor’s tenure committee. Additionally, issues were then raised
    with plaintiff’s syllabus policies, though they had not changed in many years and mirrored that of other professors in the department. Plaintiff’s performance evaluations went from “excellent” to “unsatisfactory” detailing
    that he exhibited “insubordination.” Following consecutive “unsatisfactory” performance evaluations, plaintiff was given a disciplinary hearing, and then, a termination hearing. Plaintiff alleged the hearing did not conform to
    the procedures outlined in the College handbook, though he was not terminated, and no additional disciplinary measures resulted from the hearing. In his original complaint, plaintiff alleged (1) his criticism of the changes in the college mathematics
    curriculum addressed a matter of public concern; (2) the speech was not barred from First Amendment protection as it related to scholarship and teaching; (3) the adverse employment actions he experienced were motivated, at least in part, by his speech;
    and (4) defendants had not made a showing of “actual material and substantial disruption” or “reasonable predictions of disruption” to support their adverse employment actions against plaintiff. The district court dismissed plaintiff’s
    First Amendment retaliation claim, holding that the administrators in their official capacities were protected by Eleventh Amendment sovereign immunity. However, the Ninth Circuit, in reversing the district court’s decision, held that plaintiff
    had the right to speak out about the math standards, the standards were a matter of public concern and comfortably fit within the scholarship or teaching exception, and the administrators are not entitled to dismissal on qualified immunity grounds, thus
    allowing plaintiff the opportunity to seek leave to amend his claims.

    Topics:

    Academic Performance and Misconduct | Constitutional Issues | First Amendment & Free Speech | Students

  • Date:

    Restoring Freedom of Speech And Ending Federal Censorship – The White House (Jan. 20, 2025)

    Executive Order: Restoring Freedom of Speech and Ending Federal Censorship. This Executive Order prohibits federal officers, employees, or agents from censoring protected speech, as well as the use of federal resources to restrict free speech. The Order further charges the Attorney General, in consultation with the heads of executive departments and agencies, to investigate the activities of the Federal Government over the last four years for inconsistencies with this Order and prepare recommendations for appropriate remedial actions.  

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    Ohio Telecom Association v. Federal Communications Commission (6th Cir. Jan. 2, 2025)

    Opinion granting petitions for review and setting aside Safeguarding Order. Plaintiff, a statewide trade association that represents the common interests of telecommunication companies in Ohio, challenged the Federal Communications Commission’s
    (FCC) statutory authority under Title II of the Communications Act to impose net-neutrality principles via its issuance of the Safeguarding and Securing the Open Internet Order (the Order). The Order defined mobile broadband and private mobile
    services as telecommunications services, which are subject to Title II common carrier restrictions, rather than as information services. Relying on Loper Bright Enterprises v. Raimondo, the Sixth Circuit overruled prior decisions granting Chevron
    deference to FCC opinions and found that “mobile broadband does not qualify as ‘commercial mobile service’ … and therefore may not be regulated as a common carrier.
    In issuing its decision to set aside the Order – which effectively ends the FCC’s authority to impose net neutrality restrictions on internet service providers – the Sixth Circuit reasoned that “[f]or almost 20 years after
    Congress enacted the Telecommunications Act, the FCC’s position was that companies providing access to the Internet offered information—not telecommunications—services.”  

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Social Media | Technology | Technology Accessibility

  • Date:

    Jill Hines v. Alex Stamos (W.D. La. Dec. 18, 2024)

    Memorandum Order denying without prejudice Defendants’ Motions to Dismiss. Plaintiffs, social media users with significant followings, brought a putative class action lawsuit on behalf of themselves and others similarly situated, alleging the Aspen Institute, the Board of Trustees of the Leland Stanford Junior University, the Leland Stanford Junior University, the Stanford Internet Observatory, the Atlantic Counsel, the Atlantic Counsel’s Digital Forensic Research Lab, and several individuals (the Defendants) caused plaintiffs’ “disfavored” viewpoints (namely, their speech concerning COVID-19 and elections) to be censored, and remain engaged in ongoing censorship. Plaintiffs allege Defendants were “active participants, if not architects, of a vast censorship scheme, and—in collaboration with government officials—actively monitored, targeted, and ultimately induced social media platforms to censor [their] speech (among many others).” The District Court initially decided the issue of arbitrability in a manner adverse to Defendants, Defendants appealed, and the Fifth Circuit held that the lower court must first determine personal and subject matter jurisdiction before considering arbitrability. On remand, the District declined to grant dismissal finding that plaintiffs were entitled to limited discovery pertaining to both jurisdiction and standing. First, the Court reasoned that plaintiffs’ claim that Defendants’ engaged in censorship in Louisiana by “assigning analyst[s] specifically to Louisiana, determining whether speech originated in Louisiana, tracking the speech’s spread from Louisiana, and communicating with state officials in Louisiana about supposed disinformation” was a sufficient preliminary showing of jurisdiction suggestive of “the possible existence of the requisite [minimum] contacts” with the State to oblige Defendants to bear the burdens of jurisdictional discovery, and thus, denied the motion to dismiss. Next, as to standing, it distinguished Murthy v. Missouri, 144 S. Ct. 1972 (2024), reasoning that absent a request for preliminary injunction and its corresponding heighted burden plaintiffs need not aver “that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic,” therefore, plaintiffs’ mere allegation that Defendants, “participation in the Election Integrity Project and Virality Project, caused plaintiffs to be censored on social media platforms” was adequate to access preliminary discovery.  

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Litigation, Mediation & Arbitration | Social Media

  • Date:

    Students for Justice in Palestine, at the University of Houston v. Gregg Abbott (W.D. Tex. Oct. 28, 2024)

    Order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiffs, student groups from the University of Texas at Austin, the University of Houston, and the University of Texas at Dallas alleged violations of their First Amendment rights and assert claims of viewpoint discrimination and chilled speech, against their respective institutions, boards, and personnel, as well as Texas Governor Greg Abbott, based on implementation of Executive Order GA-44 “relating to addressing acts of antisemitism in institutions of higher education.” The Order required Texas public postsecondary institutions to “establish appropriate punishments” for antisemitism as that term is defined in Texas Code, which relies in part on the International Holocaust Remembrance Alliance’s “Working Definition of Antisemitism” (adopted May 26, 2016). Plaintiffs claimed that inclusion of that definition of antisemitism in institutional policy would proscribe their ability to criticize Israel, and that the Order chilled their free speech and violated the First Amendment. In initially permitting the claims to proceed, the court found plaintiffs’ intended future speech would be proscribed by the policy and that under Speech First, Inc. v. Fenves (5th Cir. 2020), “in the pre-enforcement context, [] chilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” However, the court denied the request for a preliminary injunction as overly overboard, and dismissed the claims against Governor Abbott, the University of Houston and UT Austin and their respective boards as barred by sovereign immunity. 

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Race and National Origin Discrimination | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | Students

  • Date:

    Univ. of Md. Students for Justice in Palestine v. Bd. of Regents (D. Md. Oct. 1, 2024)

    Memorandum Opinion granting Plaintiff’s Motion for Preliminary Injunction. Plaintiff, a registered student organization, brought claims alleging violation of free speech against the University of Maryland, College Park (UMCP), its Board of Regents, and UMCP’s President following the revocation of their October 7, 2024, event registration. Congruent with UMCP campus use policy, plaintiff sought and was approved to host what it referred to as an “interfaith vigil … to mourn lives lost in Israel’s purported ‘genocide’ in Gaza.” Following “passionate opposition to the event,” including a petition that received nearly 28,000 signatures and asserted that putative references during the event to Israel “as an apartheid state” or accusations that the country was “committing genocide” would be tantamount to “an antisemitic attack” and must be curtailed; UMCP first met with organizers and then, revoked approval for the event and banned all on-campus student organization events for that day. After a hearing, the court issued an injunction permitting the event to proceed, finding plaintiff is likely to prevail on the merits of its free speech claims since although it “picked a particularly controversial date to hold an event to commemorate Gaza War dead, to decry what it terms Israeli ‘genocide,’ and to promote … Palestinian life and culture,” the ideas underlying the event were “expressive … however vile they may seem to some” and thus, must be accorded “protection as speech when … used in the forum of a public university.” The court recognized UMCP’s compelling interest in maintaining a safe campus but found that cancellation of the event was neither viewpoint neutral nor narrowly tailored and relied upon evidence that (1) over the past year plaintiff held more than 70 events on campus “without significant disruption or conflict,” (2) the event reservation form contained no indication “that Jewish students will be threatened or harassed, or otherwise impeded from attending classes, or that any buildings will be occupied, an encampment established, or property destruction contemplated,” and also found that UMCP has reasonable alternatives to banning all expressive speech including employment of additional security personnel, reliance upon assistance from local and state police, and installation of temporary metal detectors and fencing for crowd control.  

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    Thiry v. Bd. of Regents of Univ. of Mich. (E.D. Mich. Sep. 27, 2024)

    Opinion & Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Plaintiff, a former employee of the University of Michigan with a substance-use disorder brought claims of discrimination and retaliation under Section 504 of the Rehabilitation Act (Rehab Act) and unlawful restrictions of protected activity and retaliation under the First Amendment against the University and three of its employees. Plaintiff sought in-patient treatment for substance-use disorder and alleged that upon his return to work his supervisor created a hostile work environment by making derogatory comments about his disorder, publicly berating him, and disclosing confidential information about his treatment. Plaintiff sent a series of communications to his supervisor, including some texts and emails outside of working hours, and the University held an internal mediation between the parties in which plaintiff was admonished to constrain future communications to work related topics sent during working hours. The communications continued and plaintiff received a two-day disciplinary layoff for “Negligent Careless Work Performance” about which he filed a grievance. Plaintiff was placed on paid suspension pending an investigation into his conduct, the University held a Disciplinary Review Conference (DRC), and plaintiff was terminated. Thereafter, plaintiff sought and was granted the opportunity to retire in lieu of termination, and signed a Settlement Agreement and Release of Liability stating among other things that he would forgo “further claims, demands, or actions related to the DRC” and his grievance about the two-day layoff. Despite signing the Agreement, plaintiff filed suit. The court granted summary judgment in favor of all defendants on plaintiff’s claim for emotional distress damages related to the Rehab Act claim, as well as the Rehab Act claims against the individual defendants, and for the University on plaintiff’s Section 1983 claims for money damages, but denied the motion as to individual defendants, reasoning that “official-capacity claims are not barred by the Eleventh Amendment where a plaintiff seeks only prospective equitable relief.” The court found that while the plain language of the Agreement precluded claims pertaining to the DRC and suspension, a material factual dispute remained regarding whether the Agreement prohibited plaintiff’s broader claims related to discrimination under the Rehab Act, as well as Section 1983 claims for money damages from individual defendants, and for declaratory and injunctive relief.   

    Topics:

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

  • Date:

    Diei v. Boyd (6th Cir. Sep. 17, 2024)

    Opinion partially reversing dismissal and remanding. Plaintiff, a former pharmacy student at the University of Tennessee Health Science Center College of Pharmacy brought claims asserting violation of the First Amendment against the University President, members of the University Board of Trustees, and the Dean of the College of Pharmacy after she was twice investigated for alleged violation of the College’s professional standards due to anonymous complaints about posts to her pseudonymous social media accounts. After the second investigation deemed her posts “sexual,” “crude,” and “vulgar” in violation of the College’s “Standards for Student Professionalism Conduct” – and although the Dean reversed the Committee’s decision to dismiss plaintiff from her studies – plaintiff sought declaratory relief and an injunction blocking the continued application of the College’s Professionalism Policies, which she alleged are vague and overly broad, as well as damages. The University sought dismissal and attached documents to their motion. While those motions were pending, plaintiff graduated from the College, and the University sought to dismiss her nonmonetary claims as moot. The district granted both motions, and in doing so relied upon the attachments to the first motion to dismiss. The Sixth Circuit reversed in part, and conducted a de novo review of the remaining monetary damages claims, disregarding the “inappropriate attachments” considered by the district court in its ruling on the first motion pursuant to Fed. R. Civ. P. 12(b)(6). The Sixth Circuit distinguished Yoder v. Univ. of Louisville, wherein a nursing student was expelled for inappropriate blog posts that both identified her as a student and violated the confidentiality of her patients, reasoning that in the instant case, plaintiff’s pseudonymous “speech did not identify her with the college, had no connection to her studies, and did not lead to disruption” and therefore, absent “a genuine educational purpose for regulating plaintiff’s speech [on sexuality, fashion, and song lyrics], her communications fell safely within the confines of the First Amendment protection.” Allowing that postsecondary institutions maintain legitimate pedagogical “interest[s] in teaching students to comply” with professional standards, the Court ruled that the University’s potentially applicable policies were not properly before them or the lower court since they were beyond the four corners of the complaint. The Court also found that plaintiff plausibly alleged that the University’s multiple investigations into her speech, vote to expel her, and implication that continued speech could compromise her professional studies were sufficiently chilling to survive dismissal, and thus, remanded plaintiff’s First Amendment damage claims.  

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Social Media

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