Lawsuit Over Cancellation of April 2024 Pro-Palestine Protest at U Texas Can Go Forward

From Heilrayne v. Univ. of Texas at Austin, decided Jan. 27 by Judge David Ezra (W.D. Tex.) but just recently posted on Westlaw:

On April 23, 2024, the PSC [Palestine Solidarity Committee] at UT posted a notice on their Instagram account describing a protest for the following day. The notice advertised a walk-out of class, a meeting at Greg Plaza, and a “march to occupy the lawn.” The post stated: “In the footsteps of our comrades at Columbia SJP, Rutgers-New Brunswick, Yale, and countless others across the nation, we will be establishing THE POPULAR UNIVERSITY FOR GAZA and demanding our administration divest from death.” On April 24, the PSC posted again with a proposed schedule of events, including a walk-out of class, a guest speaker, two teach-ins, an art workshop, and study and food breaks, with the final event scheduled for 7:00 p.m.

In response, UT preemptively cancelled the event by sending notices to PSC student representatives, with one such notice dated April 23, 2024, and four others dated April 24, 2024. In those notices, UT states its reasons for cancellation as follows:

The Palestine Solidarity Committee student organization’s event “Popular University for Gaza,” which is planned for tomorrow, has declared intent to violate our policies and rules, and disrupt our campus operations. Such disruptions are never allowed and are especially damaging while our students prepare for the end of the semester and final exams. For these reasons, this event may not proceed as planned.

However, Plaintiffs allege such notice was not communicated to the broader student body or public until the protest was underway, at which time UT released its Event Cancellation Notice, dated April 23, 2024, to the press….

Plaintiffs were arrested and also subject to probation or deferred suspension as university discipline. They sued, claiming this violated the First and Fourth Amendments. The court concluded that plaintiffs had adequately alleged that the April 24 protest was canceled based on its viewpoint:

The Court finds that Plaintiffs plead facts that, when viewed in the light most favorable to the Plaintiffs, allege that the April 24, 2024 protest was cancelled because of the group’s viewpoint and perceived association with the pro-Palestine protest movement. This is further supported by Plaintiffs’ allegations that the University has treated other student organizations with a reputation for “provocative demonstrations” differently, including not cancelling a Young Conservatives of Texas (“YCT”) demonstration that was anticipated to attract counter-protestors and controversy on campus….

And the court concluded that plaintiffs had adequately alleged that their arrests and disciplinary actions were retaliation for their First-Amendment-protected activity:

Plaintiffs have alleged sufficient facts that, viewed in the light most favorable to Plaintiffs, draw a reasonable inference that these adverse actions were motivated against their exercise of protected speech. Plaintiffs have alleged that only pro-Palestine protestors were subject to arrests and discipline, while counter-protestors at the scene of the protest were not. Plaintiffs also allege facts suggesting certain Officer Defendants were given a quota of pro-Palestinian protestors to arrest. Additionally, Plaintiffs allege similar protests on UT’s campus on different topics have not resulted in arrests or prior cancellation.

To the extent Defendants argue that Plaintiffs cannot assert retaliatory arrest claims under Nieves v. Barlett (2019), the Court finds these arguments unpersuasive. Defendants cite Nieves for the proposition that a plaintiff must “plead and prove the absence of probable cause for the arrest” to assert a viable First Amendment retaliatory arrest claim. They suggest that should the Court find the arresting officers had probable cause to arrest Plaintiffs, that finding is fatal to any accompanying First Amendment retaliation claims.

However, in Gonzalez v. Trevino (2024), the Supreme Court clarified the standard in Nieves and recognized a narrow exception where a plaintiff produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” The Court finds that even if Plaintiffs did not adequately plead the absence of probable cause, they have alleged sufficient facts at this stage to permit their case to fall within the “narrow exception” identified in Nieves and Gonzalez. As previously discussed, Plaintiffs have alleged that similarly situated counter-protestors were not subject to arrest or student discipline, and that past protests by similarly situated student organizations were not treated in the same manner. The Court finds these allegations sufficient at this stage to circumvent any bar to Plaintiffs’ claims articulated in Nieves….

The court concluded that the case could therefore proceed as to some defendants in their official capacities, to the extent plaintiffs are being sued to have the discipline removed from their records. But the court also held that the defendants were protected from personal liability by qualified immunity, because “it appears unsettled whether the rights Plaintiff claims are violated are ‘clearly established'”:

The Supreme Court recognized in Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” extending First Amendment protections to students in public schools. In that seminal case on First Amendment jurisprudence, the Court found there were no facts in the record “which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” In doing so, the Court also acknowledged a school’s ability to constrain speech in limited circumstances where there is evidence that an otherwise protected activity will result in such a substantial disruption. Under those circumstances, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

However, Tinker was also a case about students in a K-12 public school, not a public university like UT. Plaintiffs urge the Court that applying Tinker on a campus full of adults would “eviscerate First Amendment protections at colleges and universities” and that the age of the Tinker plaintiffs is of “paramount importance.” However, the Court here is not tasked with determining whether Tinker applies on college campuses; instead, the Court’s role here is to determine whether the principle that Tinker is inapplicable to college campuses was “clearly established” such that a reasonable official could not have relied on that case in cancelling the April 24th protest and arresting and disciplining students involved….

[N]either the Fifth Circuit nor the Supreme Court has definitively answered whether Tinker applies in higher education settings…. Thus, Defendants could have reasonably forecasted that the April 24th protest would become a substantial disruption to school activities, given the national context of similar protests also titled “The Popular University for Gaza.” Subsequent discipline also could have reasonably been viewed as justified in light of the University’s cancellation of the protest. Regardless of whether these decisions were correct, or whether such a reliance on Tinker was misplaced, the facts do not demonstrate the kind of “plainly incompetent” decisions that would survive qualified immunity and sustain an individual-capacity action against these officials.

Accordingly, Plaintiffs’ individual-capacity claims against Defendants as to their First Amendment causes of action are barred by qualified immunity ….