Students for a Democratic Society Chapter Expelled from Univ. of South Florida for Rule Violations Loses First Amendment Challenge to USF Policies

In Tampa Bay Students for a Democratic Society v. Univ. of South Florida, decided Friday by Judge Steven Merryday (M.D. Fla.), the SDS challenged its expulsion from USF, as well as various USF policies:

Policy 6-017.VI.C.2: "Members of student organizations that are suspended or expelled may not … attempt to continue to function at the university under a new name but with similar members and purpose."

Policy 6-028.VI.E.1: "Displays, tables, and exhibits need prior approval using the Reserved Activity Request or Space Impact Process."

Policy 6-028.VII.I.2: "Non-University guests who wish to attend an Activity sponsored by a University Entity may be required to be ac-companied by a USF representative (student, faculty, or staff member) with a valid USF identification card. Non-University guests must show a valid drivers' license or another form of picture ID upon request. Guests may be required to be registered for some Activities."

Policy 6-028.VII.L.3: "A reservation through the Reserved Activity Request process is required" for the use of space by a student organization after 5:00 p.m.

Policy 6-028.VII.A.9: "To provide an environment conducive to preparation of final or cumulative exams, the final two weeks of any academic term, no Activities will be permitted in or near Academic Spaces on campus, without reservations."

The expulsion only applied to the group as a group, and didn't apply to its members, though some members were indeed expelled for their own misconduct. The court upheld the policies (after laying out the various ways in which SDS was alleged to have violated many USF rules):

"[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism (1989). "Outdoor areas of campus are considered traditional public forums for individuals, organizations, and guest speakers….'Outdoor areas of campus' means generally accessible areas of a public institution of higher education in which members of the campus community are commonly allowed, including grassy areas, walkways, or other similar common areas." §§ 1004.097(3)(c), (2)(d), Fla. Stat [part of the Florida Campus Free Expression Act]….

The plaintiffs offer no argument as to why the Guest Policy, which regulates the access of non-students to the USF campus, violates the First Amendment. The claim fails….

The Final-Exam Week Policy states: "To provide an environment conducive to preparation of final or cumulative exams, the final two weeks of any academic term, no Activities will be permitted in or near Academic Spaces on campus, without reservations." Patently content-neutral and expressly and reasonably tied to a significant university interest, the Final-Exam Week Policy allows ample alternative channels of communication both during the final two weeks of each academic term and during the forty-eight weeks the policy does not apply ….

Mischaracterizing the Reservation Policy as a "curfew," the plaintiffs argue that the hours set by the policy are "untenably early for speech and advocacy outdoors on a public university campus" …. Neither a "curfew" nor a "ban," the Reservation Policy, which the plaintiffs concede is a "permit requirement[ ]," requires only advance reservation for the use of university space during evening hours: a permissible time, place, and manner restriction by any standard.

The plaintiffs argue that the Reservation Policy, along with the Tabling Policy, afford USF "unbridled discretion" because "no published standards exist for consideration of such requests." Although USF Policy 6-028.III affords the university discretion to "take appropriate action if there are reasonable grounds to believe an Activity presents an imminent threat to the health, safety, welfare, or operation of campus," that discretion is subject to the extensive "published standards" set forth in Policy 6-028, which span twenty pages and incorporate seven additional USF policies, four USF regulations, and four Florida statutes…

The plaintiffs contend that "[c]ontent neutrality is absent from defendants' complete ban on [ ]SDS and groups with 'similar members and purpose.'" Adopted long before the expulsion of SDS, the Expulsion Policy applies without regard to viewpoint and serves to prevent an expelled student organization from evading expulsion through reconstitution under an alias—a tactic attempted by the plaintiffs.

That the Expulsion Policy "incidental[ly]" affects SDS, whose "entire 'purpose' … is to further a particular viewpoint through expressive action," does not render the policy viewpoint-based. The dispositive inquiry is whether the Expulsion Policy, "on its face," draws "distinctions based on the message a speaker conveys." Reed, 576 U.S. at 163.

The plaintiffs contend that the Expulsion Policy "is viewpoint based by defi-nition" because a reference to an organizational "purpose" allegedly causes the "terms of the [Expulsion Policy] … [to] distinguish favored speech from disfavored speech on the basis of the ideas or views expressed." But the Expulsion Policy restricts only an organization expelled due to misconduct, regardless of the organization's viewpoint.

The plaintiffs ignore the underlying function served by the Expulsion Policy's requirement of both "similar members" and a "similar purpose." The Expulsion Policy employs the two criteria conjunctively to ensure "narrow[ ] tailor[ing]." Absent the "similar purpose" limitation, a former member of an expelled organization could face university discipline for participation in an unrelated student organization. Absent the "similar members" limitation, a student organization sharing a purpose with an expelled organization but otherwise compliant with university policy could theoretically face university discipline for the conduct of a non-member. By requiring similarity in both membership and purpose, the Expulsion Policy limits enforcement to expulsion-evasion efforts and preserves "ample alternative channels" for expression. If the members of an expelled organization re-assemble to form a new organization for the same purpose, the result is a mere name change, an evasion, a deception—permitted neither by USF disciplinary rules nor in many in-stances by the law in other circumstances.

Relying on Healy v. James (1972), the plaintiffs argue that "a heavy burden rests on the college to demonstrate the appropriateness" of SDS's expulsion because the "denial of recognition [is] a form of prior restraint." But Healy concerned the expressly viewpoint-based denial of a student organization's initial application for "official campus recognition." This action follows SDS's expulsion for a past, conduct-based violation of university policy—an ongoing punishment for prior misconduct, not a prior restraint….

The court also rejected the individual students' due process challenges, including ones related to their own personal expulsions. Here's the court's summary of the factual background to the expulsions:

SDS describes itself as "current and former USF students who collectively want to advocate for diversity, equity, and inclusion (DEI) and in solidarity with marginalized communities including, particularly, Palestinians." SDS's "particularly pro-Palestinian" advocacy at USF began in 2014, when SDS collected student signatures "in support of divesting USF's endowment from Israel's illegal occupation of Palestine." {At least one other USF student organization expresses a similar view: Students for Justice in Palestine, which remains in good standing and has never incurred suspension or expulsion.}

SDS's history of non-compliance with USF policy began no later than December 2020, when USF suspended SDS for disregarding COVID-19 containment measures. SDS violated the suspension at least three times. In March 2023, police were deployed when SDS refused an official order to disperse during an unapproved "sit-in" at a USF administrative building. SDS members who "engaged in acts of physical violence against the police" were disciplined.

"From the River to the Sea" Flyer and Conduct Probation

In January 2024, the USF administration received a complaint concerning flyers posted in an unapproved location on campus. The flyer depicts children inside a bomb-damaged building and holding a Palestinian flag: the background includes several displays of the slogan "From the River to the Sea." The SDS logo appears in the flyer's top-right corner.

USF staff removed the SDS flyers and others posted in the unapproved location. After investigating, Student Conduct and Ethical Development (SCED) invited [plaintiff] Hinckley, then the president of SDS, to a February 12, 2024 "informational meeting." At the meeting, Hinckley consented to a "resolution agreement" that waived SDS's right to a formal hearing and appeal.

Because Hinckley, on behalf of SDS, admitted to "posting flyers in multiple unapproved locations," SCED found SDS responsible for "[f]ailure to adhere to or abide by policies" and placed SDS on conduct probation. SCED states that conduct probation "is a period of reflection on behavior and an opportunity to demonstrate satisfactory citizenship" and that conduct probation "may result" in re-striction on (1) "hosting/co-hosting/attending any programs, functions, socials, or events with other student organizations;" (2) "utilizing any services/resources offered to student organizations through any University office/department;" and (3) "participating in or holding leadership positions in your governing council." SCED advises SDS that "further conduct violations while on conduct probation may impact the severity of future sanctions." …

On April 22, 2024, while SDS was on conduct probation and a week before final-exams, a group of at least ten SDS members, including one participant carrying a petition addressed to Dean McDonald, marched—without approval—through the Marshall Student Center, ascended toward Dean McDonald's fourth-floor office, and chanted: "Dean McDonald, you're no good; defend diversity like you should! USF, shame on you; student voices matter too!" {USF Policy 6-017.VI.C.1 provides that a student group on conduct probation "May have limited access to benefits and resources due to violation of USF regulation or policy."}

The petition, not "particularly pro-Palestinian," concerned USF's commitment to funding various DEI programs. Participants held signs bearing messages such as "Expand Africana Studies!!!," "PROTECT WOMENS [sic] AND GENDER STUDIES," and "Defend Divesity [sic]."

Dean McDonald met the group on the third floor. After receiving the petition, Dean McDonald, facing the demonstrators with her back pressed against the atrium railing, said: "Sure, thanks. I will take that. Now you all need to leave the building quietly and not disrupt students who are studying…. You are welcome to send an email to request a meeting with me." Dean McDonald departed, and the demonstrators resumed chanting.

After this incident, which the plaintiffs characterize as a "petition delivery action," SCED charged SDS with the following violations:

Actions and/or behaviors that disrupt, disturb, impair, or interfere with the processes and/or functions of the University or the rights of members of the University community.

Actions and/or behaviors that disrupt, disturb, impair, or interfere with the academic environment, and/or failure to abide by USF 3.025 Disruption of Academic Process.

Actions and/or behaviors that are disorderly, unruly, and/or disturb the peace.

Failure to comply with an official request or lawful directive of law enforcement or a University Official acting within the scope of their assigned duties. This includes failing to comply with assigned sanctions and/or related University sanctions.

Finding that SDS "pose[s] an ongoing threat, disruption, or interference to the health and safety and continued functions of the USF community," SCED placed SDS on interim suspension. During the interim suspension, SDS could not (1) "hold or participate in any formal or informal meetings regarding the organization or the alleged violations;" (2) "host/co-host/attend any programs, functions, or activities;" (3) "utilize any services/resources offered to the student organization through any University office/department;" (4) "participate in or hold leadership positions;" or (5) "conduct any recruitment/new member/pledge activities or have contact with any potential new members/new members/pledges." {Dean Graham declares that "This language is not intended to prevent the organization from gathering evidence or information to prepare for any stage of the student conduct process. If Tampa Bay Students for a Democratic Society had asked for clarity, which it did not, I would have told them the same. In fact, Tampa Bay Students for a Democratic Society was advised that, during the student conduct process, it had the right to be accompanied by an advisor of its choice, that it had the opportunity to present relevant information, and had the opportunity to question witnesses."}

On April 25, 2024, SDS met with SCED to discuss the "petition delivery action." The following day, SDS received a letter confirming the continuation of the interim suspension and related restrictions. The letter specified that "the activity scheduled for Monday, April 29, 2024, at noon inside or outside the USF Library must be canceled as hosting the activity will violate the Interim Suspension and will result in further violations of the USF Student Code of Conduct." The "activity" that "must be cancelled" was a "Nakba Day commemoration event" that SDS had planned for April 29, 2024—the third day of final-exam week. {According to the plaintiffs, "During the Nakba, more than 75,000 Palestinians were ethnically cleansed from Palestine to make way for what would later become the state of Israel. Every year, Palestinians commemorate it with Nakba Day events."}

"Nakba Day Commemoration Event"

Despite (1) the interim suspension; (2) the explicit prohibition of the April 29, 2024 event; (3) the fact that April 29, 2024, fell during final-exam week, during which student-organization activity was generally restricted; and (4) the fact that Nakba Day occurs on May 15 and not on April 29, SDS continued to publicize the event on Instagram.

On April 29, 2024, demonstrators—SDS members, unaffiliated USF students, and non-students, among others—arrived at the library. They were met by USF staff, who reiterated the Dean's email prohibiting the demonstration and told the demonstrators to depart. After moving to MLK Plaza, an area outside the Marshall Student Center, the demonstrators pitched tents, distributed umbrellas and orange safety vests, and wheeled in a cart containing makeshift wooden shields studded with protruding metal bolts. Around 4:30 p.m., Dean McDonald ordered the demonstrators to remove the tents and disperse or face arrest. The police arrested the demonstrators who refused the orders. That evening, Hinckley announced on Instagram that SDS would return to MLK Plaza the following day.

Demonstrators returned the following day to MLK Plaza, again with orange vests, umbrellas, and wooden shields distributed with instruction on their use against police. When demonstrators refused an order to disperse, police deployed tear gas, discharged rubber bullets, and arrested ten demonstrators. One arrestee, a USF student, possessed a club; another, a 39-year-old male unaffiliated with USF, possessed a firearm.

Hinckley and SDS Expelled

SCED placed Hinckley on interim suspension on the evening of April 30, 2024. After an "informational meeting" and an "administrative hearing," USF expelled Hinckley, effective June 14, 2024. The expulsion letter concludes the following:

On April 29, 2024, [Hinckley] was responsible for leading a protest event for [SDS] after the organization, of which [Hinckley] is the President, was placed on an Interim Suspension on April 22, 2024. SDS received several warnings that the event could not occur. At the event, participants were told they could not put up tents but failed to comply with warnings from USF staff. The organization's failure to comply resulted in several arrests by UPD.

On April 30, 2024, [SDS] held another protest event while still on interim suspension status. A cart was brought in by a participant that was covered by mats. Two USF staff members talked with leaders of SDS to find out what was in the cart, but the leaders failed to share. Around 1 p.m., the groups circled up and [Hinckley] led the event with speeches. Several individuals began putting on orange safety vests. The mats were removed from the carts and large wooden squares that appeared to have bolts sticking out of them were uncovered. Umbrellas were also handed out to participants and participants were directed on how to use them against police.

SDS utilized its Instagram account to tell people to come to the MLK Plaza at USF because police intended to use force against them resulting in more people arriving on campus in an already dangerous environment.

[Hinckley] approached the Dean of Students multiple times asking why SDS had to leave at 5 p.m. It was explained that the event was against policies and had to end at 5 p.m. [Hinckley] continued to argue with the Dean of Students. The 5 p.m. deadline was reiterated by Chief Daniel. The event resulted in several arrests and tear gas being used on participants and bystanders who did not leave when warnings were given. [Hinckley] created an unsafe environment for the USF community.

The expulsion letter states that by a preponderance of the evidence SCED found Hinckley responsible for the following violations:

Failure to comply with an official request or lawful directive of a law enforcement or a University Official acting within the scope of their assigned duties. This includes failing to comply with assigned sanctions and/or related University sanctions.

Failure to adhere to or abide by policies, including but not limited to, local ordinance, state law or federal law. Adjudicating by an outside entity is not a prerequisite to a determination of responsibility by the University.

The prompting, facilitating, or encouraging of others to violate standards of behavior.

Actions and/or behaviors that disrupt, disturb, impair, or interfere with the processes and/or functions of the University or the rights of members of the University community.

The illegal possession, storage, use, or sale of any weapon (lethal or non-lethal), firearm, ammunition, or any incendiary, explosive or destructive device…. This also covers any item used as a weapon to cause actual physical harm or threaten physical harm. Reference Pol-icy 6-009 Weapons on USF Property.

Conduct non-compliant with University policies, guidelines, or directives related to the health and safety of the University community.

Richard C. McCrea Jr. and Cayla McCrea Page (Greenberg Traurig) represent defendants.