Court Upholds Interim Suspension of Students for Justice in Palestine Chapter for Prohibited 10-Day Tent Demonstration

Yesterday's decision by Judge William K. Sessions III (D. Vt.) in University of Vermont Students for Justice in Palestine v. University of Vermont upheld the University's interim suspension of UVMSJP for violating various rules in setting up a 10-day long tent demonstration on the University's Davis Center Green in Spring 2024:

• Using the Davis Center Green to the exclusion of others for non-commercial solicitation without a reservation;
• Disruption of scheduled tabling and other reservation of space outside the Davis Center;
• Disruption of normal student engagement and/or academic work patterns;
• Setting up tents ("temporary structure") on the Davis Center Green without a permit and declining to remove them when requested;
• Overnight occupancy of a temporary structure;
• Encouraging and facilitating the violation of policy by other students.

UVMSJP sued over this suspension of the group's recognized student organization privileges (the lawsuit wasn't about any academic suspension of any particular students). The court, though, granted the university's motion to dismiss, concluding that even if the facts were as UVMSJP had alleged, they wouldn't amount to a violation of the First Amendment. First, the court rejected plaintiffs' prior restraint claim:

In Healy v. James (1972), the Supreme Court considered whether a college violated the plaintiffs' free association rights when it denied recognition of their student group. Ultimately, the Court remanded the case for reconsideration of the plaintiffs' claims, as it was unable to "conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations." … Healy noted that recognition of a student group, "once accorded, may be withdrawn or suspended if petitioners fail to respect campus law."

More recently, the Supreme Court considered a case in which Hastings Law School denied Registered Student Organization status to a Christian student group ("CLS") that excluded students based on religion and sexual orientation. Christian Legal Society v. Martinez (2010)…. The Supreme Court … [held] that by requiring CLS to comply with all school policies and regulations, Hastings was merely imposing a "reasonable, viewpoint-neutral condition on access to the student-organization forum," while CLS was seeking "not parity with other organizations, but a preferential exemption from Hastings' [nondiscrimination] policy."

The Court finds that both Healy and Martinez support Defendants' contention that a university may take action against a student organization when the university's rules have been violated. Whether those actions are constitutional, however, will largely depend on both the lawfulness of the underlying rules and the extent to which the university's actions were in concert with those rules. The Court must therefore proceed to UVMSJP's additional constitutional challenges.

The court held that the relevant program of student group access to university property, resources, and recognition was a limited public forum, in which the government's actions as property owner need only be reasonable and viewpoint-neutral. And the court concluded that these actions were indeed reasonable and viewpoint-neutral:

"[U]nder appropriate circumstances, a permitting requirement governing the use of a public open space can further a legitimate interest in the regulation of competing uses of that space." Moreover, the University "has a significant interest in ensuring safety and order on campus, especially where the [property in question] is sited at a highly trafficked area of the campus." … See also Healy ("[A] college has a legitimate interest in preventing disruption on the campus."). In keeping with these principles, the Court finds that UVM's registration process, as well as its rules for casual users, serve reasonable University goals of ensuring public safety, minimizing disruption, and coordinating the use of limited space.

Other alleged violations cited in the Notice, including disruption of normal student engagement or work patterns, also fit within those same legitimate and reasonable University goals. The use of tents, and in particular sleeping in the tents overnight, allegedly violated the University's Temporary Structures policy. The policy itself states that "[w]hile temporary structures do not necessarily express thoughts or opinions, in many cases their purpose is to represent particular viewpoints symbolically." The policy expresses the University's commitment to "an atmosphere of free expression and open dialogue," and recognizes that this commitment "must be balanced with other concerns as well, such as the safety of our students and employees; the condition and appearance of our campus; and the prudent use of our financial and human resources." "[O]vernight occupancy of a temporary structure" such as a tent is expressly prohibited "[d]ue to safety and security concerns." …

Allowing students to sleep outside on University property gives rise to vulnerabilities that are not present when students are housed in secure dormitories. The Temporary Structures policy addresses those vulnerabilities and furthers the community's strong interest in maintaining student safety….

The Court turns next to the question of viewpoint neutrality. Unlike Martinez, where the law school's decision touched upon CLS's core principles with respect to membership, the decision in this case was based on conduct that bore no direct relationship to UVMSJP's message regarding the war in Gaza. The group's actions triggered policies, such as the Posting and Solicitation policy, based upon conduct. In turn, the University responded to alleged violations of those policies and, despite unsupported allegations of pretext (discussed below), not to the messages or motivations underlying the group's speech. See, e.g., Martinez ("The Law School's policy aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior."). Moreover, the UVM policies do not, as UVMSJP contends, allow unfettered discretion….

The court also rejected UVMSJP's claim that the violations of the content-neutral rules were just a pretext, and that the real reason for the University's actions was disagreement with UVMSJP's viewpoint:

UVMSJP cites the cancellation of a scheduled appearance by a Palestinian poet several months before the demonstration at issue here. The appearance was allegedly cancelled after pro-Israel groups claimed the poet's works are anti-Semitic. The Verified Complaint also references other protests and demonstrations, and claims the University failed to take action against demonstrators who supported Israeli policies.

While the Court accepts the factual allegations in a complaint as true, the law does not require it to also accept a plaintiff's legal conclusions. Here, the allegations in the Verified Complaint do not support a plausible pretext claim. Briefly stated, the incidents cited by UVMSJP are readily distinguished from the events in this case.

And, as discussed above, the University's actions were taken pursuant to rules and policies that focus on conduct. The Verified Complaint references a series of previous protests: a 2017 student march into the UVM President's office; a 2018 protest that overtook classrooms and blocked a public street at rush hour; a 2019 student walkout and subsequent demonstration on the Andrew Harris Commons; a blockage of a public street in 2019; a 2021 student protest of the University's response to allegations of sexual assault on campus; a 2021 protest and march that involved University spaces, including open greens and a campus building, while at times blocking traffic; and the annual 4/20 protests that occurred prior to the legalization of marijuana in Vermont. The Verified Complaint does not allege that any of these events involved a Recognized Student Organization violating a University rule or policy. The Verified Complaint also does not claim that any of the cited events involved a multi-day demonstration, a lack of proper registration, or the overnight use of tents.

UVM cannot regulate public streets, and cannot discipline persons or groups not affiliated with the University. With respect to an alleged preference for pro-Israel protesters, there is no claim that such protesters engaged any of the conduct, or even similar conduct, addressed in the University's Notice to UVMSJP. Accordingly, the allegations in the Verified Complaint do not plausibly support the assertion that these other events offer evidence of pretext.

Finally, the court rejected the UVMSJP's various due process claims as well.

Kendall A. Hoechst (Dinse P.C.) represents the University.