First Amendment Challenge to UW "Unacceptable or Inappropriate" Conduct Policy Revived

Another item from today's Ninth Circuit decision in Reges v. Cauce, written by Judge Daniel Bress and joined by Judge Milan Smith (for more on the primary portion of that opinion, see the UW Professor's Parody of Land Acknowledgment in Class Syllabus Protected by First Amendment post):

Executive Order 31, UW's "Nondiscrimination and Affirmative Action" policy … begins …:

The University of Washington, as an institution established and maintained by the people of the state, is committed to providing equality of opportunity and an environment that fosters respect for all members of the University community. This policy has the goal of promoting an environment that is free of discrimination, harassment, and retaliation. To facilitate that goal, the University retains the authority to discipline or take appropriate corrective action for any conduct that is deemed unacceptable or inappropriate, regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation….

Despite the broad sweep of this text, UW, like the district court, reads EO-31 to "tether[]" the terms "unacceptable" and "inappropriate" to the concepts of unlawful discrimination and retaliation. As further support, UW notes that EO-31 lists specific policies aimed at discrimination, harassment, and retaliation immediately after its prohibition on "unacceptable or inappropriate" conduct; provides that its terms "have the meaning given to them by applicable federal or state law and regulations"; and includes "Nondiscrimination" and "Non-Retaliation" in its title and the titles of its subsections.

Although this language standing alone provides some support for UW's reading, the inference of any "tether" to the legal definitions of harassment, discrimination, and retaliation is broken by EO-31's plain text, which reaches "any conduct," including (there is no dispute) expression, "regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation." Given this language, EO-31 is not "readily susceptible" to the district court's interpretation that only conduct "resembling" unlawful discrimination, harassment, or retaliation is covered.

Because the district court's limiting construction conflicts with the plain text of EO-31, it was improper. Although Reges asks us to answer the constitutional question without the district court's narrowing construction, we think that question is best left to the district court in the first instance. In evaluating that issue, the district court may also consider whether a proper understanding of EO-31 may be informed by how the policy has been enforced and applied in practice….

Judge Sidney Thomas dissented:

The majority determines that there is no "tether" to unlawful discrimination, harassment, or retaliation because of the words "any conduct" and "regardless." If EO-31 said "any conduct" is sanctionable "regardless of whether the conduct is unlawful discrimination, harassment, or retaliation," then I would agree. But EO-31 instead says "any conduct" is sanctionable "regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation." That preserves the tether: under the plain language of EO-31, sanctionable conduct still must resemble unlawful discrimination, harassment, or retaliation, but need not be as extreme. Thus, EO-31 is "readily susceptible" to the district court's limiting construction.

Other tools of statutory interpretation bolster this view, as the majority acknowledges. The purpose of this provision, stated in the sentence immediately preceding the disputed language, is to "promot[e] an environment that is free of discrimination, harassment, and retaliation." The title of EO-31 includes "Nondiscrimination," and the subtitle of the relevant provision is "Nondiscrimination and Non-Retaliation." Immediately after the disputed provision, EO-31 lists specific policies aimed at discrimination, harassment, and retaliation. And EO-31 defines discrimination, harassment, and retaliation as "hav[ing] the meaning given to them by applicable federal or state laws and regulations." In sum, this provision is all about unlawful discrimination, harassment, and retaliation, so the district court's limiting construction—that prohibited conduct must "resemble" unlawful discrimination,      harassment,     or retaliation—is sound. I would affirm the district court….

Ronald London and Gabriel Walters (Foundation for Individual Rights and Expression) and Carl J. Marquardt represent plaintiff.

Comments

[Dr. Ed 2]

UMass Amherst once punished a student for violating the Preamble of the Conduct Code. I am not making this up...

The problem is that words mean whatever college administrators want them to mean.

[Lee Moore]

Sidney is really stretching here.

Oh, Clinton judge and Obama SCOTUS candidate. What a surprise !

[Brett Bellmore]

Tying "the terms "unacceptable" and "inappropriate" to the concepts of unlawful discrimination and retaliation. "

My first thought on reading this was, "Given the litigation histories of most universities, tying these concepts to unlawful discrimination and retaliation should work AGAINST the university! There should be a presumption it's the university itself engaging in unlawful discrimination and retaliation, in applying this policy.

So then I looked up U of W, and, surprise: U of W is no outlier in this regard.

[Brett Bellmore]

Oh, and to be fair:

U of W is apparently offending on both sides. Which rather demonstrates that they have no standing AT ALL to be making judgments about what speech is unacceptable or inappropriate in terms of unlawful discrimination.

[Davy C]

That's a different UW. That one is Wisconsin; the one referenced in the post is Washington.

[ReaderY]

In general, I think federal courts have no business construing a state law or rule against the state’s will. They should have sent a question to the state courts to reach an authoritative determination.

In general, in order to have standing, a plaintiff has to prove there is imminent danger of enforcement. When the state officials sued insist there is no such danger, it seems to me a plaintiff has to prove they are lying in order to be able to maintain a suit.

Here, there was no evidence whatsoever that the defendants were lying and really intended to enforce the rule in a manner the plaintiffs claimed. The fact that the judge had a different opinion about what the rule meant establishes nothing about whether the plaintiffs were in any imminent danger of enforcement.

I think in general that federal courts ought to replace the overbreadth doctrine with certification of what disputed rules and statutes mean to state courts. If state courts provide a narrowing construction, federal courts must accept that construction as authoritative and that should end any dispute over what the law means.

Nor does the overbreadth doctrine permit striking down the law completely even as it stands. The overbreadth doctrine applies to speech only. Although the law could potentially be applied to speech, it reaches a great deal of non-speech conduct (more under the plaintiffs’ theory). Non-speech conduct is not subject to the overbreadth doctrine. There is no standing here to entertain a challenge to non-speech conduct

[Lee Moore]

When the state officials sued insist there is no such danger, it seems to me a plaintiff has to prove they are lying in order to be able to maintain a suit.

Here, there was no evidence whatsoever that the defendants were lying and really intended to enforce the rule in a manner the plaintiffs claimed.

The majority thought otherwise :

A public university investigated, reprimanded, and threatened to discipline a professor for contentious statements he made in a class syllabus.