Background
While enrolled at Portland State University in two thousand and twenty-one, Chal McCollough sought an exemption from the university’s COVID-19 vaccination requirement via email. He used crude language and expletives to accuse the university’s policies of being unlawful and politically motivated. The university referred McCollough for disciplinary proceedings, which resulted in his suspension and expulsion. McCollough filed a lawsuit alleging First Amendment retaliation and due process violations under Section nineteen eighty-three of Title forty-two of the United States Code. The district court dismissed the complaint, and McCollough appealed pro se.
The court’s reasoning
The court affirmed the dismissal of the due process claim because the Ninth Circuit has not imposed a specific evidentiary standard on student disciplinary proceedings. However, the court reversed the ruling on sovereign immunity, finding the district court erred by not applying the controlling Kohn test to determine if the university is an arm of the state. Regarding the First Amendment claim, the court held that the university’s rationale did not fit the categories justifying regulation of student speech under Mahanoy. The court noted that even crude language communicating a political point may be protected, and the university’s actions would not be viewpoint neutral if they were based on anti-vaccine opinions. The court also found that McCollough sufficiently pleaded that his speech was a substantial or motivating factor for the discipline. Finally, the court reversed the qualified immunity ruling for the individual defendant, concluding that the right to use profane language in nonpublic communications is not clearly established in a way that would grant immunity at the pleading stage.
What it means going forward
The decision requires lower courts to apply the Kohn test when analyzing sovereign immunity for public universities in the Ninth Circuit. It reinforces that student speech, even when profane, is not automatically unprotected and that officials may face liability if they discipline students for political expression.