Cases & Developments - National Association of College and University Attorneys

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Date:
8/9/2024
Carr, et, al. v. Tr. of Purdue Univ.; Tr. of Indiana Univ. (S.D. Ind. Aug. 14, 2024)
Order granting Defendants’ Motions to Dismiss and denying Plaintiffs’ Motion for a Preliminary Injunction. Plaintiffs, all tenured professors at Indiana public postsecondary institutions, sought a preliminary injunction to enjoin enforcement of Senate Enrolled Act 202 (SEA 202) against the Trustees of Purdue University, the Trustees of Indiana University (collectively “Boards”) and Intervenor, the State of Indiana. Plaintiffs alleged that SEA 202, which directs Boards to “adopt new policies aimed at ensuring that faculty members’ pedagogies align with the principles of free inquiry, free expression, and intellectual diversity” violates the First and Fourteenth Amendments. Plaintiffs assert that SEA 202 had a “chilling effect” on their employment because they “felt compelled to make changes to their syllabi” to abide by the policy and such efforts have been burdensome to university faculty members. Defendants argue “any injury that plaintiffs could potentially face would be attributable to the presently non-existent university polices, rather than to SEA 202 itself.” Because the court concluded Plaintiffs’ claims were “premature” requiring an “attenuated chain of inferences” and their injuries were “inchoate” due to the lack of institutional policies implementing SEA 202, it denied the request for preliminary injunction, granted Defendants’ motions to dismiss based on lack of jurisdiction, and dismissed the case without prejudice noting that it “express[ed] no view as to the merits of the[] constitutional claims, which must await further factual development.”
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech | Tenure
Date:
8/9/2024
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:
8/9/2024
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:
8/2/2024
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:
8/2/2024
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:
8/2/2024
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:
8/2/2024
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:
8/2/2024
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:
7/12/2024
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:
7/12/2024
Murthy v. Missouri (U.S. June 26, 2024)
Opinion reversing the judgment of the Fifth Circuit and remanding. Plaintiffs, Missouri, Louisiana, and five individual social-media users, sued “dozens of Executive Branch officials and agencies,” alleging that they had violated the First Amendment by encouraging or coercing various social media platforms, including Facebook and Twitter, to remove, demote, or otherwise treat as “misinformation” many of plaintiffs’ postings related to COVID-19 vaccines and policy and the 2020 elections. The district court granted a sweeping preliminary injunction, and the Fifth Circuit affirmed, though it limited the injunction to provide that “defendants, and their employees and agents, shall not ‘coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including though altering their algorithms, posted social-media content containing protected free speech.’” The Supreme Court stayed the injunction and granted certiorari. In reversing the judgment of the Fifth Circuit, the Supreme Court held that plaintiffs lacked standing to seek injunction against the defendants, finding that plaintiffs had not made a clear showing that (1) the alleged injuries were the result of the defendants’ actions rather than the independent content moderation practices of the platforms or (2) there is a substantial risk that they would face similar alleged restrictions in the near future.
Topics:
Constitutional Issues | First Amendment & Free Speech | Social Media

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