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….

Joshua Bleisch, Ronald London, Sara Berinhout, and James Diaz (Foundation for Individual Rights and Expression) and Carl J. Marquardt represent plaintiff.