The Volokh Conspiracy
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From the Emergency Motion for Temporary Restraining Order or Preliminary Injunction, just filed today in Mucaj v. Univ. of Connecticut:
This First Amendment case arises out of disciplinary proceedings against the plaintiffs, seniors at the University of Connecticut (school), based on their use of an offensive word, the racial slur "nigger" on October 11, 2019. A conduct officer of the school, Defendant Kytan, found that the plaintiffs violated the "Disruptive Behavior" policy. The officer also found that, among other things, the plaintiffs should be removed from student housing as punishment. The plaintiffs seek a temporary restraining order or preliminary injunction specifically enjoining the school from enforcing the Disruptive Behavior policy as-applied to the plaintiffs in administrative proceeding, and in particular a January 17, 2020 2:00pm hearing and from removing the students from their housing.
The plaintiffs are likely to succeed on the merits for several reasons. The school's conduct is plainly a content-based and viewpoint-based restriction on speech, prohibited by the First and Fourteenth Amendments. Censorship of particular viewpoints, however offensive, is almost invariably unconstitutional. In addition, the disciplinary proceedings violate a standing court order in the consent decree. Finally, the "Disruptive Behavior" policy is vague, overbroad, and leaves too much discretion to decision-makers as concerns speech….
[The Consent Decree:] In early 1989, Nina Wu was a junior at the University of Connecticut. Ms. Wu hung a handmade poster on her dormitory room door. The poster listed the types of people who were "welcome," "tolerated." "unwelcome," and "shot on sight"—the last of which listed "bimbos," "preppies," "racists," and "homos." The school found that Ms. Wu violated the school harassment policy by way of the poster. Based on the use of the word "homos," the school expelled Ms. Wu from all residential and dining halls in April, 1989. In response, Ms. Wu subsequently brought an action in federal District Court, District of Connecticut, pursuant to 42 U.S.C. § 1983, alleging deprivation of her First Amendment rights. Although she denied writing the word "homos," she asked the court to assume that she did.
On January 25, 1990, the court, the Honorable Peter C. Dorsey, District Judge, entered judgment in accordance with the consent decree. Pursuant to that consent decree, the school agreed to be permanently enjoined from enforcing the school harassment policy employed against Ms. Wu, as that policy existed at the time.
Specifically, the school agreed to excise the prohibition in the policy concerning "making personal slurs or epithets based on race…." In its place, the school adopted a policy prohibiting the "face-to-face" use of "fighting words," in accordance with that legal doctrine.
The school furthermore agreed to be permanently enjoined from "enforcing … any other policy that interferes with the exercise of First Amendment rights by the plaintiff or any other student, when the exercise of such rights is unaccompanied by violence or the imminent threat of violence." The school also agreed to provide Ms. Wu with a dormitory room, to restore her dining privileges, and to pay Ms. Wu reasonable attorneys' fees.
At some point after that, the school and its officials and employees began to systemically disregard their obligations under the consent decree. They failed to take any reasonable precautions to ensure the order is followed or even that successive officials were made aware of its existence…. On January 26, 2015, the American Civil Liberties Union of Connecticut … sent a letter to the Office of President of the school. The letter expressed concerns over how the school's policies threatened First Amendment rights. Among other things, the letter reminds the school of its obligations pursuant to the consent decree….
[The incident involving the plaintiffs:] On October 11, 2019, Defendant Daugherty viewed an October 11, 2019 video that allegedly showed the plaintiffs' walking through a parking lot, late at night. A student emailed to her an internet link to the video. Defendant Daugherty believed she heard the defendants utter the word "nigger" in the video. That utterance is inaudible or indiscernible at normal volume—the utterance was only audible or discernible using a feature to highly amplify the recording.
Defendant Daugherty reported what she viewed to the University of Connecticut Police. A police investigation ensued, which resulted in an arrest warrant.
According to the warrant, video, and witnesses, there were three students walking together. Their conduct was identical except two of them—the plaintiffs— uttered a racial slur. Only the students who uttered a racial slur faced criminal charges, even though all other conduct among the students was the same.
Both school officials and school police described what occurred as a "bias incident" in correspondence…..
Starting in October, 2019, the school commenced disciplinary processes against the students. The first hearings were general and informational in nature as to the administrative process. On October 23, 2019, Conduct Officer Kytan had the first such hearing with Karal, and on October 25, 2019, she had the first such hearing with Mucaj.
Conduct Officer Kytan informed both students that they were being investigated because of "remarks directed towards race/ethnicity." In the October 25, 2019 hearing, Mucaj asked Conduct Officer Kytan if Mucaj was being investigated "because of something I said," and Kytan responded, "Yes."
On November 1, 2019, Conduct Officer Kytan conducted a factfinding hearing of Mucaj, and on November 4, 2019, Conduct Officer Colon conducted a factfinding hearing of Karal. Among other things, Conduct Officer Colon asked Karal as to the spelling of the word he uttered on October 11, 2019. She asked whether the utterance was a word that is spelled "n-i-g-g-a'" or whether the utterance was a word that is spelled "n-i-g-g-e-r."
On November 13, 2019, Karal was subjected to an investigative hearing by the nursing school. During this meeting, Nursing School Officials made it explicitly clear to Karal that he was being investigated for the content of his speech on October 11, 2019. From start to finish of the investigation, Conduct Officer Kytan describes the investigation as concerning "remarks directed towards race/ethnicity."
On November 19, 2019, Conduct Officer Kytan detailed her findings to Mucaj, and on November 20, 2019, she detailed her findings to Karal. She "found" that the students violated a policy worded as follows:
"Disruptive behavior, which is defined as participating in or inciting others to participate in the disruption or obstruction of any University activity, including, but not limited to: teaching, research, events, administration, student conduct proceedings, the living/learning environment, or other University activities, on or off-campus; or of other non-University activities when the conduct occurs on University premises; or of the living environment, on or off-campus."
Conduct Officer Kytan found and explained, that among other things, the appropriate sanction was to terminate the students' housing agreement with the school. She explained that the students could acquiesce and accept her finding or challenge her finding by way of another hearing.
At no point in any of the proceedings was either student accused of acting with violence or the imminent threat of violence, or any misconduct even remotely approaching such. The school has only ever accused the students of acting orally and verbally.
On January 8, 2020, the plaintiffs were each noticed that such a hearing would be conducted on January 17, 2020, with or without their presence. That same day, General Counsel for the school clarified and affirmed that any discipline imposed at the January 17, 2020 hearing would go into effect immediately, without a stay even if review was sought. Exhibit 9. Further communications with that office verified that only a specific Court Order could stop proceedings. This lawsuit followed.
[The heart of the substantive legal argument:] "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989). It is well established that racial epithets, without more, fall within the aegis of the First Amendment. See Matal v. Tam (2017). Prohibitions against racial epithets amount to not just impermissible content discrimination, but viewpoint discrimination. See R.A.V. v. City of St. Paul (1992)….
It is clear that the school is engaging in impermissible content and viewpoint discrimination. It is equally plain that the school is violating the consent decree in Wu.
Consider the treatment of the plaintiffs vis-à-vis the third student. The only difference in conduct was that the plaintiffs uttered a racial slur and the third student did not. This is plain in the conduct officer's findings, arrest warrant affidavit, and the record. If there was a content-neutral rule at issue, then the third student would have been punished as well—but he wasn't.
The focus of the investigation also evinces impermissible content and viewpoint discrimination. The conduct officer's findings and conclusions as to both plaintiffs focus on the racial epithet. There is no focus on something content neutral, like time, place, manner, or volume. As stated above, from start to finish Kytan describes the investigation as concerning "remarks directed towards race/ethnicity." Other officials describe what happened as a "bias" incident. No one describes the incident as "loud" or the like.
Statements by the Conduct Officers themselves also show that the proceedings are all about content and viewpoint discrimination. Conduct Officer Colon was so concerned with content as to inquire as to the spelling of the utterance—which begs the question as to which is protected and which is not? Finally, Conduct Officer Kytan herself states affirmed to Mucaj that the issue was the content of his speech: something he said. Not how loud he was. Not where he was. Not the time of day. Not his alcohol consumption. It was about the content and viewpoint of his speech.
The video evidence does not support a finding that the students' conduct was disruptive. In her findings, Kytan principally uses video evidence for identity.
Because the policy being enforced implicates First Amendment rights without violence or threat of violence, the consent decree is violated. In addition, because the enforcement is based on impermissible content and viewpoint discrimination, the plaintiffs have a likelihood of success on the merits….
[G]ood cause exists for the emergency nature of this motion. The plaintiffs received notice of the January 17, 2020 hearing on January 8, 2020. The timing by the school created this exigency, and the school will not reschedule to accommodate these proceedings. In light of the degree of irreparable harm, the compressed timeline, the constitutional interest in prohibiting government action that chills the speech of non-parties to this action, and because the defendants flagrantly violate the order from this court in the consent decree, there is a particular exigency in the present case that merits a finding of good cause for an emergency motion….
Note that the judge (Judge Michael P. Shea) has expressed concern about the timing of the motion, in these two docket entries:
ORDER: At 4:30 p.m. the Court received a hand-delivered chambers copy of Plaintiffs' "Emergency Motion for TRO or Preliminary Injunction," which has not been filed on the docket. The Court will take no action on the Plaintiffs' motion unless counsel files it on the docket by 8:00 p.m. tonight. (1/15/20.) By 10:00 a.m. tomorrow (1/16/20), the Plaintiffs must serve, and file proof of service on the docket, the Complaint and the Plaintiffs' motion and all supporting papers (together with the cover letter to the court), on the Attorney General's Office, AAG Mark Kohler, any other attorney at the Attorney General's Office with whom Plaintiffs' counsel has communicated about this matter, the General Counsel for UCONN, and any other lawyers for UCONN or the individual defendants with whom Plaintiffs' counsel has communicated about this matter. The Court will hold a telephonic status conference on 1/16/20 at 4:00 p.m. Plaintiffs' counsel must make diligent efforts to ensure that counsel representing UCONN is on the call…. Because the request for temporary restraining order was not filed until less than 48 hours before the hearing that is the subject of the request, a hearing of which Plaintiffs have had notice since January 8, and because there does not appear to be adequate reason why the TRO request could not have been filed earlier, the Court will deny the request unless Plaintiffs' counsel complies with this order in good faith….
ORDER: Upon a preliminary review of the papers submitted to chambers, it does not appear that they fully comply with the requirements for an ex parte temporary restraining order set forth in Fed. R. Civ. P. 65(b)(1). Specifically, the papers do not appear to include a certification by Plaintiffs' counsel of any efforts made to give notice of the request for temporary restraining order and the reasons why such notice should not be required. Although a cover letter from Plaintiffs' counsel refers generally to contacts with counsel for UCONN, that discussion suggests, if anything, that notice of the request for temporary restraining order could easily be given and thus should be required. If Plaintiffs' counsel believes ex parte relief is warranted, a proper certification must be filed….
This doesn't go to the merits of the claim, which can still be addressed even if the motion isn't treated on an emergency basis—but of course it might be important to the students, who are facing the risk of immediate eviction. We should see soon how the court ultimately decides on this timing question.