Background
While enrolled at Portland State University in two thousand and twenty-one, Chal McCollough sent an email using crude language and expletives to request an exemption from the university’s COVID-19 vaccination requirement. He accused the university’s policies of being unlawful and politically motivated. University officials 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 one thousand nine hundred and 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 for student disciplinary proceedings. However, the court reversed the ruling on sovereign immunity, finding the district court erred by relying on outdated cases instead of the controlling en banc decision in Kohn versus State Bar of California. Regarding the First Amendment claim, the court held that McCollough sufficiently alleged that his speech merited protection because his crude language did not fit the categories of unprotected speech outlined in Mahanoy Area School District versus B.L. The court further found that the university’s rationale for discipline did not clearly establish that the speech was not a substantial or motivating factor for the adverse action. Consequently, the court reversed the grant of qualified immunity to the individual defendant.
What it means going forward
The decision clarifies that public universities in the Ninth Circuit must undergo a specific analysis to determine if they are arms of the state for immunity purposes. It also reinforces that students retain First Amendment protections for political speech even when expressed through profane or disrespectful language, provided the speech does not materially disrupt school operations or fall into other narrow exceptions.