No. 21-1143. Thompson v. Ragland.

D.Colo. Judge Hartz. 42 USC § 1983—First Amendment Freedom of Speech—Student Speech—Qualified Immunity—Motion to Dismiss.

January 26, 2022

Plaintiff is a student at Metropolitan State University of Denver (MSU). She has an eye condition that makes it difficult for her to see a classroom’s white board. Plaintiff was enrolled in a chemistry class taught by Dr. Lazorski. Plaintiff arrived late to two classes and sat on the floor because the desks were taken in the front rows. The first time she was late, Dr. Lazorski insisted that plaintiff move to a seat, and she had students leave the front row so plaintiff could sit there. The second time, Dr. Lazorski instructed plaintiff to move to a seat, but plaintiff said she preferred to sit on the floor in the front row because of her eye condition. Dr. Lazorski told plaintiff her only options were to sit at a desk or leave the classroom. Plaintiff opted to leave the class and ultimately dropped the class because of the seating dispute. MSU removed the class from plaintiff’s record and refunded her tuition for the class.

Plaintiff then complained about Dr. Lazorski to various MSU officials and administrators. During a mediation, plaintiff was encouraged to complete an evaluation and class-rating forms to address her concerns, but she later learned that she could not submit a review because she was no longer enrolled in the class. Plaintiff sent an email to her former classmates summarizing her experience and encouraging the students to file honest faculty evaluations about the class. Plaintiff then received a letter from defendant, MSU’s associate director for student conduct, informing her that the Dean of Students Office received reports that she may have violated provisions of the student conduct code and that she was subject to a “no contact order” restricting her from communicating with and discussing Dr. Lazorski with other students.

Plaintiff filed suit under 42 USC § 1983 seeking compensatory and punitive damages. Defendant moved to dismiss for failure to state a claim, asserting entitlement to qualified immunity. The district court granted the motion, holding that even if defendant’s conduct abridged the First Amendment, he did not violate clearly established law.

Plaintiff appealed the motion ruling. Public officials are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time. Under US Supreme Court precedent, students maintain their constitutional rights to freedom of speech and expression at school. But student conduct that materially disrupts classwork or involves substantial disorder or invades the rights of others is not immunized by freedom of speech. There is also highly relevant Tenth Circuit precedent on this issue. Based on this precedent, the Tenth Circuit concluded that plaintiff’s complaint adequately stated a First Amendment violation because, based on the allegations in the complaint, plaintiff’s speech was restricted, and there was no apparent legitimate basis for the restriction. Further, defendant did not argue that plaintiff’s communications were vulgar or violated valid restrictions on the time, place, or manner of speech, or that plaintiff was disciplined for violating the rules for engaging in school-sponsored expressive activity or for advocating unlawful conduct. Further, although defendant argued that plaintiff’s conduct was disruptive, there was no evidence of any disruption caused by plaintiff’s email. Additionally, at the time of defendant’s letter to plaintiff, the law was clearly settled that discipline cannot be imposed on student speech without good reason. And when, as here, discipline takes the form of a prior restraint on student speech, prospective, content-based restrictions carry a presumption of unconstitutionality.

However, defendant has not yet had an opportunity to present evidence that might justify his actions. Because the district court disposed of the case on a Fed. R. Civ. Proc. 12(b)(6) motion, defendant has not yet filed an answer, and he may be entitled to qualified immunity at the summary judgment stage.

The dismissal on qualified immunity grounds was reversed and the case was remanded for further proceedings.