Metropolitan News-Enterprise


Friday, April 8, 2016


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Court: Conservative Student Activist Has Retaliation Claim




The Ninth U.S. Circuit Court of Appeals yesterday revived a conservative student activist’s retaliation claim against officials at California State University, Fresno.

The panel agreed with a district judge that the university had cause to discipline Neil O’Brien after he approached two professors in their offices and began peppering them with hostile questions and videotaping their responses. The appellate judges also upheld CSU’s regulation proscribing harassment and intimidation of students, staff, and faculty, saying it was not unconstitutionally vague.

But some of the actions the university took against O’Brien, such as banning him from holding office in a campus organization or in student government, smacked of retaliation for his outspoken political views, Judge William Fletcher wrote for the panel.

Because he plausibly alleged that his expression of those views—particularly on immigration—was a substantial motivating factor in those actions, his First Amendment retaliation claim should not have been dismissed, Fletcher said.

The court, however, affirmed Senior District Judge Anthony Ishii’s dismissal of the remainder of the case and rejected O’Brien’s bid to disqualify Ishii from hearing the retaliation claim on remand.

‘Constitutional Conservative’

O’Brien, a recreation major, enrolled at Fresno State in 2010. A self-described “constitutional conservative,” he formed a student chapter of Young Americans for Liberty and organized events for the Central Valley Tea Party.

He also criticized faculty members and administrators for their support of the student body president, an undocumented immigrant. O’Brien created a website on which he posted information about the student body president and criticized Fresno State’s separate graduation ceremony for Latino students.

In May 2011, O’Brien complained about a poem in “La Voz de Aztlan,” a supplement to the Fresno State student newspaper published by the Chicano and Latin American Studies Department, describing the United States as “the land robbed by the white savage” and the “place of greed and slavery.”

Taking a video camera with him, O’Brien separately approached two professors—Dr. Maria Lopes and Dr. Victor Torres—in their offices to confront them about the poem.

While videotaping, O’Brien asked the professors whether they had approved the poem’s publication. Both professors refused to answer, and both called and filed complaints with the campus police, the complaint alleged.

Student Code Violated

The university held a judicial hearing on the incident and ultimately found that O’Brien had violated the CSU Student Conduct Code, which proscribes conduct that “threatens or endangers the health or safety of any person including physical abuse, threats, intimidation, harassment, or sexual misconduct.”

As recommended by a hearing officer, the university imposed sanctions that prohibited O’Brien from coming within 100 feet of the Chicano and Latin American Studies Department’s faculty, staff, offices or classrooms. A vice president added an additional sanction, a form of probation that effectively prohibited him from serving as president or treasurer of a campus organization, including the one he had founded, and from holding any position in student government.

Ishii upheld the regulation and concluded that O’Brien could not plausibly allege that the discipline was a result of his political activism, rather than his violation of the anti-harassment regulation.  

Concern for Safety

Fletcher—a former law professor—agreed, in part, saying professors “do not generally expect to be confronted without warning by a student asking hostile questions and videotaping” and, therefore, Lopes and Torres may have reasonably been concerned for their safety.

But the appellate jurist also concluded that O’Brien’s allegations of retaliatory motive, based on events occurring before and after the confrontation, were sufficient to withstand a motion to dismiss.

He cited website posts opposing the student body president and several public records requests he made to the university seeking information on administrator salaries and other issues.

“We disagree that only ‘rank speculation’ supported O’Brien’s contention that the disciplinary proceedings and sanctions were retaliatory,” Fletcher said, pointing to the former student’s accusation that assistant dean of student affairs Dr. Carolyn Coon requested students and other faculty members gather information and complaints to use against O’Brien.

Alleged Emails

O’Brien also alleged that officials emailed each other as to how best to deal with  O’Brien and his website, that the hearing officer refused to even look at his videotape of the incident for which he was disciplined, and that posts he made on university-managed Facebook pages were deleted, even though posts expressing left-leaning viewpoints were allowed to remain.

Such allegations 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,” the judge said.

He cautioned, however, that 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.”

Judges Marsha Berzon and Carlos T. Bea joined in the opinion.

Eugene Volokh, a UCLA law professor who argued for amici supporting O’Brien, critiqued the ruling on his blog “The Volokh Conspiracy.” He said he was “troubled” that the court upheld O’Brien’s discipline for the taping.

“I agree that universities must have the power to restrict speech that genuinely threatens and intimidates people (e.g., true threats of violence),” he wrote.  “But defining threat and intimidation as broadly as the Ninth Circuit does here strikes me as quite dangerous for campus speech.”

The case is O’Brien v. Welty, 13-16279.


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