Claim That U Texas Engaged in Viewpoint Discrimination in Forbidding 2024 Palestine Solidarity Committee Protest Can Go Forward

Qaddumi challenges his suspension (and the ongoing disciplinary record resulting from it) from UT as a violation of his First Amendment rights. The parties cite record evidence of the following facts. Qaddumi was involved in planning a protest, to include a “walk out of class,” “guest speaker,” and two “teach-in[s],” against ongoing violence in Gaza in April 2024 as a member of the Palestine Solidarity Committee (“PSC”). The planned protest activities were peaceful in nature.

UT, however, preemptively ordered the protest cancelled the night before it was scheduled to occur.  UT alleges that it understood PSC to have the same plans for its protest as those organized at other universities by Students for Justice in Palestine (“SJP”), a separate national group, of which PSC is not a chapter. UT says it observed indicators that PSC aimed to set up tents and stay overnight in the outdoor areas of campus, in violation of UT rules. UT cites statements made in PSC’s social media posts about intending to “occupy” campus, and the fact that at other universities around the country, SJP protesters had set up encampments causing, in UT’s view, substantial disruption to those campuses.

More specifically, then-UT Austin President Jay Hartzell instructed UT staff members to email PSC leadership directing them to cancel the protest. PSC responded to the email, noting that their demonstration would comply with UT rules and would not involve an overnight encampment. Also, on April 23, 2024, the Texas Department of Public Safety, when considering its response to the event, conducted an analysis of the planned protest and found that there were “no indicators of planned or potential disruptive activity or credible threats at this time.”

Qaddumi, along with other PSC members and UT students, proceeded with the April 2024 protest despite UT’s emailed directive to cancel it. Qaddumi and the other students testify they agreed with UT officials, who approached them at the scene, to use “no masks, no tents, and no amplified sound” at the protest.  The protestors began to march and received an order from members of the UT Police Department to disperse.  Qaddumi relayed the directive and spoke with an officer about how to direct the protestors off campus.  UT disputes this account and says that Qaddumi did not comply with the dispersal orders and instructions. UT police officers subsequently arrested Qaddumi as well as other students protesting with PSC.

UT initiated proceedings against Qaddumi for disruption, incitement, and failure to comply with directives.  The UT conduct official responsible for pursuing Qaddumi’s case, Melissa Wommack, argued Qaddumi was a leader of the protest and the messaging behind it, and responsible for “university-wide” disruption as a result.  The Student Conduct Board found that Qaddumi should be subject only to a deferred suspension which would allow him to return to campus.  Wommack appealed the panel decision.  On appeal, UT Appellate Office John Dalton found that Qaddumi should be suspended for his presence and involvement in the demonstration as a leader.  Dalton also found that Qaddumi did not comply with police dispersal orders.

Qaddumi was suspended for three semesters and banned from campus. He returned to campus in August 2025. UT retains a permanent disciplinary record of Qaddumi’s suspension pursuant to its Institutional Rules.  As such, Qaddumi may be required to disclose it on future graduate school applications or professional licensing applications.

If UT’s decision to cancel the PSC protest with which Qaddumi was involved, and subsequently suspend Qaddumi for protesting, targeted PSC’s viewpoint, opinion, or ideology, as opposed to amounting to a viewpoint-neutral application of a UT policy, then Qaddumi’s suspension constitutes viewpoint discrimination. However, UT may be able to show that a viewpoint-based restriction was warranted because it reasonably foresaw substantial disruption or material interference with the campus environment from the April 24, 2024 protest. See Tinker v. Des Moines Indep. School Dist. (1969); Healy v. James (1972). [“May be” here appears to be used in the sense of “might be”: The court assumed that Tinker‘s “substantial disruption” standard applies not just to K-12 school, as in Tinker itself, but also to viewpoint-based restrictions at universities. -EV]

That showing of a disruption must be substantial and material even considering that (1) as a university, UT is a center for vigorous debate and disagreement, such that speech that would disrupt a high school could be allowed at, and even fundamental to, UT; and (2) merely demonstrating in support of a disfavored or unpopular viewpoint is not a substantial, material disruption. And, speech may be a substantial and material disruption where it is likely to incite or produce imminent lawless action, to include (in the university context) violations of reasonable university rules or substantial interference to others’ education.

{Inciting others to protest in violation of a directive not to conduct a protest, without violation of another university policy, would not constitute inciting others to violate a reasonable university rule…. [T]hough [the] state “may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining” permission from state official “in that official’s boundless discretion.” … Otherwise, a state university could cancel a protest at its sole discretion, then punish students for proceeding with a protest alone, without a showing of likely substantial, material disruption, as Tinker requires. In other words, the Court understands the reference to “reasonable campus rules” in Healy to mean those other than a directive forbidding the speech alone.}

By contrast, speech is not a substantial disruption when it generally advocates future rule-breaking, without being likely to incite or produce an imminent, substantially disruptive action, like (as in Hess v. Indiana (1973)) announcing generally that one intends to violate a campus rule later. Finally, if Qaddumi experienced viewpoint discrimination by way of his suspension, and the Tinker substantial/material disruption standard as applied in the university context is not met, the Court may issue a permanent injunction removing the disciplinary action resulting from the April 24, 2024 protest from Qaddumi’s academic record.

As described in more detail below, these issues center on material fact questions appropriate for resolution at trial. Qaddumi cites record evidence (including UT Dean of Students Katie McGee’s deposition testimony, and the cancellation notice itself), that UT ordered the April 2024 protest cancelled based on PSC’s messaging on social media and more specifically because PSC’s messaging aligned with that of SJP, a national pro-Palestine group. Qaddumi also cites record evidence, including testimony of Wommack, emails from the Dean of Students, and photos of counter-protestors on April 24, 2024, that students not from PSC were not restricted from protesting at the same time and in the same place and manner.

By contrast, UT argues that its officials neutrally applied time, place, and manner restrictions on speech. McGee testified that the decision to cancel the protest was based on anticipated violations of university rules and “safety considerations.” Among other facts, UT alleges this perception was based on PSC’s messaging on social media, which said that “we will take back our university and force our administration to divest,” in the “footsteps” of SJP chapters at other universities.

Qaddumi also argues that UT’s typical practice of not punishing similar expression made on behalf of other groups or causes shows that it “selectively enforced its rules against [Qaddumi] based on his viewpoint,” in violation of the First Amendment. He styles this as a “First Amendment selective enforcement” basis for finding viewpoint discrimination. See Frederick Douglass Foundation v. D.C. (D.C. Cir. 2023) (protesters plausibly alleged viewpoint discrimination based on selective enforcement of a city ordinance on groups conveying a disfavored view).

He cites record evidence that UT officials have not preemptively canceled similar protests sharing other viewpoints, and that UT has not made mass arrests of students or barred students from campus based on demonstrations similar in time, place, and manner. This record evidence includes testimony from Hartzell that he did not think he had preemptively cancelled any other protest, and disciplinary records showing that Qaddumi is one of very few UT Austin students who have ever been barred from campus for demonstration activity.  According to Qaddumi, the April 2024 protest plans unfolded similarly to plans for other protests which had taken place on UT’s campus unimpeded, including Black Lives Matter protests in 2014 and protests of programming featuring Henry Kissinger in 2016.

By contrast, UT argues that “Qaddumi’s comparator [protests] differ in material respects” and are not a valid basis for a finding of viewpoint discrimination. According to UT, one such material respect in which PSC’s protest differed from the Black Lives Matter protests, or other protests, is that PSC students “announced plans to ‘occupy’ campus in violation of Institutional Rules and [] adopted tactics from a national organization intended to disrupt university operations.”

Again, UT asks the Court to weigh competing accounts of the April 24, 2024 protest and other protests, which is an appropriate question for a factfinder at trial. Qaddumi’s selective enforcement argument hinges on fact questions inappropriate for resolution at this stage, and summary judgment on this point will be denied.

Similarly, whether Tinker enabled UT to cancel the April 2024 protest is a quintessential fact question inappropriate for resolution on summary judgment. Again, UT claims it foresaw disruption, specifically because of social media communications from PSC conveying an intent to “occupy” campus and disrupt campus operations, and applied its policies neutrally in cancelling the protest. UT argues that it believed PSC would engage in a an “encampment-and-occupation” strategy, akin to the protestors at Columbia University organized by SJP. According to UT, PSC “reposted SJP’s campaign on its own Instagram account,” and SJP had declared an intent to “disrupt the university’s operations” on other campuses, leading to UT’s expectation of material and substantial disruption from PSC.

Qaddumi argues that PSC (as opposed to SJP) declared no intent to disrupt campus operations because, rather than announcing intent to create an encampment, PSC’s messaging about its plans for April 24, 2024 conveyed an intent to host a peaceful protest in compliance with UT rules. Also, Qaddumi argues that PSC and SJP are “distinct organizations that merely share similar viewpoints,” such that even substantial disruptions by a national group at other universities cannot lead to foreseeable disruption by PSC at UT.

Having reviewed the record described above … including PSC’s social media messaging about the April 24, 2024 protest, testimony of student organizers and UT officials, and the Department of Public Safety’s risk analysis of the event, the Court finds that a reasonable factfinder could conclude that substantial or material disruption of campus operations was not foreseeable to UT at the time it issued the directive to cancel the April 24, 2024 protest, such that summary judgment is not warranted.