The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
First Amendment Challenge to Suspension from University of Texas for Pro-Palestinian Protest Can Go Forward
From today's opinion by Judge Robert Pitman (W.D. Tex.) in Qaddumi v. Hartzell:
Qaddumi challenges his suspension from the University of Texas at Austin ("UT"), where Defendants currently work or previously worked as administrators, as a violation of his constitutional rights. Qaddumi was involved in planning a protest, to include a "walk out of class," "guest speaker," and two "teach-in[s]", about ongoing violence in Gaza in April 2024 as a member of the Palestine Solidarity Committee ("PSC").
He alleges these planned protest activities were peaceful in nature, but university officials claimed that protests held by aligned groups at "Columbia, Rutgers, and Yale" were "creating campus encampments" (apparently referencing the Students for Justice in Palestine ("SJP") student group, a separate entity with groups on those campuses) and have disrupted university operations to such a degree that they foresaw this, too, would disrupt university activities. UT issued a directive to students ordering them not to hold the event, or to face discipline under the university rules. Qaddumi alleges the PSC responded to UT's directive and explained that the planned protest was peaceful and educational in nature, and that they had no plans for setting up an overnight "encampment."
Separately, in March 2024, the Governor of Texas issued an executive order defining PSC as a "radical" organization and defining as "antisemitic" phrases that PSC uses at protests, such as "from the river to the sea, Palestine will be free," and stating views many of its members hold, such as saying that Israel's current policies compare to those of Germany during World War II, are also antisemitic. The executive order instructed UT to "ensure that [its] policies are being enforced and that groups such as the [PSC] and [SJP] are disciplined for violating [UT] policies."
Qaddumi, along with other students, proceeded with the April 2024 protest despite the directive to cancel it. Members of the UT Police Department arrived at the protest and called for students to disperse their protest, and Qaddumi alleges he relayed their instructions to the crowd. On accusations of criminal trespass, UT police officers subsequently arrested Qaddumi among other students. After his arrest, Qaddumi alleges he and his fellow protesters were released and charged with no crimes.
At the protest, Qaddumi alleges that counter-protesters were present holding Israeli flags and signs criticizing Palestine, who were not arrested. Qaddumi also alleges that students have held similar protests in the past who were not arrested or subject to a police response, such as an August 2020 demonstration in response to the murder of George Floyd; an April 2023 demonstration about compensation for graduate student work; and an April 2024 protest about the university firing staff members focused on advancing diversity and inclusion.
In July 2024, UT initiated disciplinary proceedings against Qaddumi, alleging that his participation in the April protests violated UT's institutional rules. In the proceedings, Qaddumi defended his actions and explained that the allegations by UT against him relied on statements made by students and groups with which he had no affiliation. UT sought his suspension for three semesters. A September decision by UT's Student Conduct Panel found Qaddumi had failed to comply with a university directive but found that Qaddumi should be subject to a deferred suspension, meaning he could remain at UT.
But subsequently, UT's Student Conduct and Academic Integrity ("SCAI") office appealed the decision not to suspend Qaddumi to a University Appellate Officer. The University Appellate Officer issued a decision in October 2024 finding that because Qaddumi both engaged in inciting conduct and failed to comply with a directive, he would be suspended from UT for one year, until August 2025. This decision is final and not administratively appealable. Until then, Qaddumi cannot attend class, visit campus, or earn credits toward his degree….
The court allowed Qaddumi's First Amendment claim to go forward as to his request for an injunction (though it found the defendants had qualified immunity as to Qaddumi's damages claim). The court concluded that it wasn't clear to what extent Tinker v. Des Moines Indep. School Dist. (1969), which held that K-12 schools have power to restrict substantially disruptive student speech, applies to public universities. But it reasoned:
Even should Tinker be assumed to apply to universities, (and as described above, the Fifth Circuit and the Supreme Court have not held as much), its application must be consistent with the characteristics of the university environment. Healy v. James (1972) (First Amendment analysis at the university level must be done "in light of the special characteristics of the environment in the particular case" as the Supreme Court "made clear in Tinker"). The Supreme Court has long recognized that universities are "vital centers for the Nation's intellectual life," to the extent that "danger … from the chilling of individual thought and expression" "is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." In other words, what may be a substantial disruption in a secondary school environment may not be a substantial disruption in a university environment; what may disrupt a secondary school could even be fundamental to universities.
The characteristic of universities as an environment for vigorous debate may be "outcome determinative" when deciding whether a restriction on student speech is viewpoint discrimination versus a valid restriction of foreseeable disruption to campus activities. Also, the Supreme Court has held that a state university cannot expel a student in retaliation for engaging in an activity protected by the First Amendment. See Papish v. Bd. of Curators of the Univ. of Mo. (1973)….
Qaddumi has plausibly pled a claim challenging his suspension as retaliatory and as viewpoint discrimination. Among other facts, Qaddumi alleges that (1) the Governor instructed Defendants to target protests that supported Palestine with restrictions and discipline, and Defendants sought to do so by forbidding Qaddumi's protest and subsequently suspending Qaddumi; (2) Qaddumi was suspended not because of his actions alone, but because of actions of other students who share similar political sentiments but no other affiliation; and (3) other students on the scene of the protest, who did not have the same views as Qaddumi, were not similarly disciplined, nor have other similar protests on different topics historically resulted in UT forbidding protests and subsequently suspending students…. Qaddumi has offered … evidence [of retaliatory motive] by identifying counter-protestors on the scene who were not disciplined. Also, Qaddumi alleges that UT has permitted students to similarly protest about other topics, like UT workers' conditions and racial justice, without later suspending them for protesting….
Qaddumi's allegations show a heightened environment amongst UT officials surrounding disciplining students for protesting in support of Palestinian rights. Qaddumi alleges that UT officials were motivated to restrict the speech of pro- Palestine student groups in particular, because Governor Abbott ordered that universities adopt policies that limit pro-Palestine protests and student groups, such as disciplining pro-Palestine student groups and banning students from making certain statements about Israel's policies toward Palestine. This Court has already recognized that the Governor's order to universities likely violated the First Amendment as a form of viewpoint discrimination, see Students for Just. in Palestine v. Abbott(W.D. Tex. 2024) ("GA-44-compliant university policies [likely] impose impermissible viewpoint discrimination."), and Qaddumi has pled that university officials derived their motive to suspend him from that order….
Also, Qaddumi pleads that he was not a member of the SJP, but rather a distinct organization, the PSC. Qaddumi alleges the PSC and SJP share political views but no other affiliation, and that they do not employ the same tactics, nor do they typically collaborate. Qaddumi alleges that UT officials cited past protests by the SJP as motivation for their decision to suspend Qaddumi. In other words, Qaddumi alleges he was suspended at least in part because of the prior actions of a student group of which he is a not a member but only shares similar views. Overall, Qaddumi's allegations suffice to create a plausible inference that retaliation for his protected speech and viewpoint discrimination caused his suspension in violation of the First Amendment.
Joseph Y. Ahmad (Ahmad Zavitsanos & Mensing, PLLC) and Brian Rolland McGiverin represent plaintiff.
