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 … Healy noted that recognition of a student group, "once accorded, may be withdrawn or suspended if petitioners fail to respect campus law."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.

Comments

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

COurt upholds what should never have been questioned.
UInv of Vermont is " a public land-grant research university in Burlington, Vermon" --- you can no more disobey the rules there than you can set up a tent city at Vermont State Capitol.
Through the bums out.

[Dr. Ed 2]

They're not even doing that -- all they are doing is saying that the CLUB can't be recognized.

[Drewski]

How much do you suppose SJP spent on this obviously meritless action? Enough to bring over a family of Palestinian refugees and cover their food and housing for a year?

[Brett Bellmore]

Thankfully, they spent it on a losing legal case, instead of bolstering their numbers. Given the nature of SJP, almost anything they might have spend the money on would have been worse for the country, and probably the college, too.

[Dr. Ed 2]

More relevant question, where'd they get the money FROM?!?
Who's funding them?

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Step bakc and ask whether in any other commercial transacition one customer can come in and ruin what all the others contracted for?
I send my kids to college --- and pay a bundle --- so that they can spend 3 weeks in tents ? NO and if that happens too bad I can't sue the hell out of the college that allows it for even one day

[ReaderY]

I’m sorry, but you’re hardly the first parent to find out that just because you pay a university tuition doesn’t guarantee that your kids are going to spend their time studying. Or hanging out with the most studious students.

The politics of SJP have nothing to do with this. Parents whose kids spent their time getting drunk at frat parties or in romantic liasons, among numerous other distractions university life offers, have doubtless felt the same way.

Fact of the matter is, your kids have their own minds. Just because you contract for water and pay good money for it doesn’t guarantee that your kids are going to drink. And no, universities don’t have a contractual obligation to you to force them to.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

But that has no specail application to school.
THe point is "Just because you know that they don't hear or act on X% doesn't mean you just capitulate the whole thing.

You and I know personally many people who never grew up. BUt some do and I am aiming at my kids being in the 'some do' category.
Hence NO TENT CITIES

[Davy C]

It would be insane if you could. Your "kids" are likely legal adults, and if your kids spent 3 weeks in tents (Wait, 3 weeks? Since when does 10 days equal 3 weeks?) that was their own choice.

And can one customer come in and ruin things? Sure, it happens. Maybe one guy takes all of something at a buffet which leaves none for you, or maybe someone talks during a movie. You'd be hard-pressed to sue in those situations, just like you'd be hard-pressed to sue just because some people erected a tent for 10 days.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Wrong and illogical.There are MANY colleges where even a few days in tents against college orders and your asss is expelled. You know that but you like to argue

[SimonP]

Suppose, after this suspension, a group of students form another organization, the "Friends of SJP." Friends is a formally distinct organization, unaffiliated with the local SJP chapter and the national SJP organization, and its members (at least initially) have never been members of SJP.

They apply for recognition by the university. Their charter states that they are dedicated to talking about the Palestinian issue from the same perspective as the SJP, but they are expressly focused on bringing speakers to campus, holding talks, and engaging in other fully-compliant activities on campus. They disavow the disruptive, unpermitted, and sometimes illegal tactics of the SJP. They just want to engage in the conversation. They go so far as to provide, in its charter, that the leaders of Friends may not be current or former members of SJP.

After recognition, they elect leaders from amongst themselves and begin operating in campus facilities with the benefit of university funds, always complying with university rules. SJP members are not banned from attending Friends events, and so SJP members begin to participate regularly. Unrecognized by the university but still active, SJP continues to engage in their own protest activity, including engaging in activities not permitted by the university. The university disciplines some students responsible for these activities, and may even call in the police.

Eventually, the two groups begin to coordinate their activities. SJP engages in loud, disruptive protests and tent encampments, while Friends restricts itself to officially permitted activities designed to promote SJP's message. SJP sets up the tents, and Friends doesn't provide logistical support for the tents, but they do circulate on campus with flyers and book rooms in campus buildings to hold talks about SJP's protest.

Can the university punish students in Friends for this kind of activity? Can they prohibit this kind of coordination? Can they de-recognize Friends as though it were an alter ego of SJP, notwithstanding the formally separate nature of the two organizations?

[ReaderY]

I think that, under the hypothetical as you state it, a university would be well within its discretion to conclude they are essentially the same organization and the pretense of formal distinction is a figleaf.