Neil O'Brien v. John Welty

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEIL O’BRIEN, an individual, No. 13-16279
Plaintiff-Appellant,
D.C. No.
v. 1:12-cv-02017-
AWI-SAB
JOHN WELTY, DR.; PAUL M. OLIARO,
DR.; CAROLYN V. COON, DR.;
VICTOR M. TORRES, DR.; MARIA A. OPINION
LOPES, DR.; LUZ GONZALEZ, DR.;
MATTHEW JENDIAN, DR., each in
their personal capacities; DOES, 1
through 25, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted
September 16, 2015—San Francisco, California
Filed April 7, 2016
Before: William A. Fletcher, Marsha S. Berzon,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge W. Fletcher
2 O’BRIEN V. WELTY
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s dismissal of a complaint for failure to state a claim,
and remanded in an action brought by a California State
University student who alleged that faculty members and
administrators violated his constitutional rights, including
those protected by the First Amendment, when they
sanctioned him for violating the Student Conduct Code’s
prohibition on harassment and intimidation that poses a threat
to others.
The panel held that California Code of Regulations, tit. 5,
§ 41301(b)(7), which authorizes branches of California State
University to discipline students for conduct that “threatens
or endangers the health or safety of any person . . . including
. . . intimidation [or] harassment,” was not unconstitutionally
overbroad or vague. The panel further held that the
regulation supported imposing discipline for plaintiff’s
conduct. However, the panel also held that plaintiff’s
complaint alleged sufficient facts to state a plausible First
Amendment retaliation claim against some of the defendants.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
O’BRIEN V. WELTY 3
COUNSEL
Brian C. Leighton (argued), Law Offices of Brian C.
Leighton, Clovis, California, for Plaintiff-Appellant.
Molly S. Murphy (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Kristin G.
Hogue, Senior Assistant Attorney General; Joel A. Davis,
Supervising Deputy Attorney General, Los Angeles,
California, for Defendants-Appellees.
Eugene Volokh (argued), UCLA School of Law, Los
Angeles, California, for Amici Curiae Student Press Law
Center and the Foundation for Individual Rights in Education,
Inc.
David J. Hacker and Heather Gebelin Hacker, Alliance
Defending Freedom, Folsom, California; Kevin J. Theriot,
Alliance Defending Freedom, Leawood, Kansas; Kevin T.
Snider, Pacific Justice Institute, Sacramento, California, for
Amici Curiae Trent Downes, Alliance Defending Freedom,
and Pacific Justice Institute.
4 O’BRIEN V. WELTY
OPINION
W. FLETCHER, Circuit Judge:
At all times relevant to this suit, Neil O’Brien was a
student at California State University Fresno (“Fresno State”),
where he was an outspoken political conservative and critic
of the university. In May 2011, O’Brien confronted and
videotaped two professors in their offices, questioning them
about a poem that had been published in a supplement to the
student newspaper. After disciplinary proceedings, the
university found that O’Brien had violated the Student
Conduct Code’s prohibition on harassment and intimidation
that poses a threat to others. The university imposed
sanctions. O’Brien brought suit in district court against
several faculty members and administrators, alleging
violations of his constitutional rights including those
protected by the First Amendment. The district court
dismissed the complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim.
We hold that California Code of Regulations, tit. 5,
§ 41301(b)(7), which authorizes branches of California State
University to discipline students for conduct that “threatens
or endangers the health or safety of any person . . . including
. . . intimidation [or] harassment,” is not unconstitutionally
overbroad or vague. We hold, further, that the regulation
supported imposing discipline for O’Brien’s conduct.
However, we also hold that O’Brien’s complaint alleges
sufficient facts to state a plausible First Amendment
retaliation claim against some of the defendants. We
therefore reverse in part and remand to the district court for
further proceedings.
O’BRIEN V. WELTY 5
I. Background
A. Factual Allegations
The following narrative is based on allegations in
O’Brien’s First Amended Complaint (“FAC”). For present
purposes, we assume that the allegations of fact and
reasonably drawn inferences are true.
Plaintiff Neil O’Brien enrolled as a junior at Fresno State
in the fall semester of 2010 to pursue a degree in recreation.
O’Brien, who describes himself as a “constitutional
conservative,” quickly involved himself in political advocacy
on campus. He formed the Fresno chapter of the student
organization Young Americans for Liberty; he organized
events for the Central Valley Tea Party; and he frequently
attended student government meetings.
O’Brien soon became an outspoken critic of the Fresno
State faculty and administration. He particularly objected to
the university’s support for the student body president, an
undocumented immigrant, and to the administrators’
endorsement of the DREAM Act. O’Brien began a website
on which he posted information he had discovered about the
student body president on the internet and through IRS
records searches. He also posted criticism of Fresno State’s
separate graduation ceremony for Latino students. He filed
public records requests to obtain information on administrator
salaries and other issues, and he spoke up at student
government meetings. He learned that his records requests
were “reported all the way up to” then-university president
Dr. John D. Welty.
6 O’BRIEN V. WELTY
In response to the activities just described, university
officials monitored and interfered with O’Brien’s activities.
During O’Brien’s first year at Fresno State, Dr. Carolyn
Coon, Assistant Dean of Student Affairs, “requested that
students and other faculty members gather information and
complaints to use against” him. The director of alumni
relations sent emails to other administrators, including the
university’s communications director, requesting that they
“do something” about O’Brien and his website. In the fall of
2012, university officials deleted some of O’Brien’s posts
from Facebook pages that were “operated and managed by
university officials” and “permanently block[ed] him from
posting” about certain issues on the pages while, at the same
time, allowing the posts of “pro-radical left-leaning view
points in support of [the student body president] and other
leftist posts to remain.”
1. Videotaping Incident
In early May 2011, O’Brien read a poem in “La Voz de
Aztlan,” a supplement to the Fresno State student newspaper
published by the Chicano and Latin American Studies
(“CLS”) Department. O’Brien objected to the ways in which
the poem characterized the United States — including
“‘America the land robbed by the white savage,’ the ‘land of
the biggest genocide,’ the ‘place of greed and slavery,’ the
‘rapist of the earth,’ . . . [and] the ‘land of the brute, the bully,
the land of glorified killers, the eater of souls[.]’” On May
11, O’Brien went to the second floor of the social sciences
building to confront Dr. Victor Torres, the faculty advisor for
“La Voz” and a professor in the CLS Department. While
waiting in the hallway outside Torres’ office, O’Brien
overheard Dr. Maria Lopes, another CLS professor, comment
to Torres that O’Brien was “stalking” the hallway. Torres
O’BRIEN V. WELTY 7
said to Lopes that “the faculty should post ‘wanted’ signs
with pictures of [O’Brien’s] face on them to mock [him] and
to serve as a warning to other students and faculty as to what
[he] looked like and warn of [his] potential presence.” After
overhearing these comments, O’Brien decided to approach
not only Dr. Torres but also Dr. Lopes.
O’Brien approached Dr. Torres’ open office door, turned
on his video camera, and asked Torres if he had approved of
the publication of the poem. Torres refused to speak to him.
O’Brien “calmly insisted on speaking to Torres about the
poem.” Torres then picked up the phone and called campus
police. O’Brien next went to the open door of Dr. Lopes’
office, with his video camera turned on, and asked her the
same questions. She, too, refused to answer, stating that she
did not want to talk to him. When O’Brien insisted, she
closed her office door and called campus police. Torres and
Lopes subsequently filed complaints with the Fresno State
campus police. Dr. Luz Gonzalez, Dean of the Social
Sciences Department (of which the CLS Department is a
part), also filed a complaint with the campus police, even
though she had not been present during the videotaping
incident. O’Brien provided to the campus police a copy of
the videotape he had made while confronting Torres and
Lopes.
When Dr. Torres and Dr. Lopes later read the campus
police report of the May 11 incident, they learned that “the
Campus Police investigator had determined . . . that [O’Brien]
was not threatening and intimidating.” “Defendants Torres,
Lopes and Gonzalez requested the Campus Police to rewrite
the report to show that [O’Brien] was threatening and
intimidating.” The FAC does not specify whether the report
was rewritten as requested, but we infer from other
8 O’BRIEN V. WELTY
allegations in the FAC that it was not. At the request of
unspecified “Defendants,” the campus police “report[ed] the
matter” to the Fresno County District Attorney, but the
District Attorney declined to prosecute.
The FAC alleges that on May 24 “[t]he Campus Police
Department, now having reviewed the actual video tape of the
incident contacted Defendants Torres and Lopes again to
confront them about what they claimed [O’Brien] did and
said, the length of time he was in each of their offices, and to
let both Torres and Lopes know that the video tape of the
incident showed that their previous claims were not accurate.
Both refused to correct their false claims.”
Also on May 24, Dean Coon mailed a letter to O’Brien
informing him that he was facing disciplinary action. The
letter stated that his actions on May 11 constituted conduct
that “threatens or endangers the health, or safety . . . including
physical abuse, threats, intimidation, harassment . . . .” The
letter required him to attend a “judicial conference” or face a
possible “disciplinary hold” on his record.
2. Disciplinary Proceedings
In response, O’Brien emailed Dean Coon, copying
President Welty and campus police, “stating that Torres and
Lopes’ accusations were completely false,” and stating that
campus police had not contacted O’Brien to request a
statement. O’Brien asked Coon to provide him with copies
of “reports made by all students, staff, and administrators”
about O’Brien. Coon initially agreed to provide such reports
but later refused to do so. O’Brien requested that he be
allowed to bring an attorney to the “judicial conference,” and
O’BRIEN V. WELTY 9
that he be allowed to videotape and otherwise record the
proceedings.
Dr. Paul Oliaro, Vice President for the Division of
Student Affairs and Dean of Students, replied to O’Brien,
stating that President Welty had asked him to respond. Oliaro
wrote that pursuant to a “long-standing policy” of President
Welty, attorneys were not permitted to participate in “judicial
proceedings,” but that O’Brien could bring a non-attorney
advisor. Oliaro also wrote that O’Brien would not be allowed
to record or videotape the judicial conference.
The judicial conference took place on June 17. O’Brien
brought an attorney, but the attorney was not allowed to
participate in the conference. O’Brien brought no other
advisor. At the conference, Dean Coon offered O’Brien a
settlement under which O’Brien would admit the allegations
against him and would agree to sanctions restricting him from
coming within 100 feet of CLS faculty, staff, and offices.
O’Brien refused to sign the proposed settlement.
On August 26, Dean Coon sent O’Brien a letter stating
that disciplinary charges had been filed. The letter charged
him with violation of California Code of Regulations, tit. 5
§ 41301(b)(7) (“Student Conduct Code”), which authorizes
disciplinary sanctions for student conduct that “threatens or
endangers the health or safety of any person . . . including
physical abuse, threats, intimidation, harassment, or sexual
misconduct.” The letter detailed the procedures of a “judicial
hearing” at which O’Brien could contest the charges. The
letter stated that O’Brien could bring a non-attorney advisor,
but not an attorney, to the hearing.
10 O’BRIEN V. WELTY
The judicial hearing was held on September 13.
O’Brien’s attorney was not permitted in the hearing room.
The hearing officer was Mr. Marcus Freeman, who held
unspecified positions in the Arts and Humanities Department
and in the Human Resources Department. O’Brien again
asked permission to record the proceedings, and was again
refused. He asked to be provided a copy of the recording that
was being made by the university, but was refused on the
ground that the recording “was University property.” Dean
Coon was identified as the “investigator” at the hearing. Dr.
Torres, Dr. Lopes, Dean Gonzalez and O’Brien all testified.
O’Brien asked Mr. Freeman, the hearing officer, to look
at the videotape he had made during the May 11 incident, but
Freeman refused to do so. O’Brien then sought to have
campus police Detective Manucharyan, who had seen the
video, testify about what it contained. O’Brien’s attorney had
interviewed Manucharyan, who had told the attorney that Dr.
Torres and Dr. Lopes had not been “truthful” when they
reported the May 11 incident to the campus police, and when
they spoke to Manucharyan during his follow-up
investigation. O’Brien’s attorney was sitting with
Manucharyan in the lobby, out of earshot of the hearing
room. Dean Coon left the hearing room to call campus
police. When she returned, she reported that an unidentified
person at the police station had informed her that
Manucharyan was “not available,” and that “since the matter
was an ongoing investigation, none of the officers or
detectives would be able to come testify or comment on it.”
The FAC alleges that Manucharyan was “prepared to testify,
but no one from Fresno State advised Defendant[] Coon or
Freeman of that fact.” The FAC is silent on the question why
O’Brien did not inform Freeman that Manucharyan was
outside the hearing room and was prepared to testify.
O’BRIEN V. WELTY 11
On September 30, 2011, after having received a report
from Mr. Freeman recommending disciplinary sanctions
against O’Brien, Vice President Oliaro rendered a final, non-
appealable decision finding that O’Brien had violated the
Student Conduct Code. Oliaro concluded that Dr. Torres and
Dr. Lopes could reasonably have found O’Brien’s behavior
to be “intimidating and harassing and were concerned for
their safety.” Oliaro had not provided a copy of Freeman’s
report and recommendation to O’Brien prior to reaching his
decision. According to the FAC, Freeman’s report was
“replete with inaccuracies and blatant manipulation of the
‘evidence.’”
Vice President Oliaro imposed two sanctions: First,
O’Brien was prohibited from coming within 100 feet of CLS
faculty, staff, offices, or classrooms, or from coming onto the
second floor of the social sciences building, “unless [he had]
prescheduled business, a class, or an appointment.” Second,
O’Brien was placed on “disciplinary probation” through the
spring 2012 semester. Mr. Freeman had not recommended
this second sanction. As a consequence of the probationary
status imposed by Oliaro, O’Brien was prohibited by
university rule from being president or treasurer of the
campus chapter of Young Americans for Liberty, and from
holding any position in student government.
3. Further Incidents
O’Brien was involved in two further incidents involving
the Fresno State faculty and campus police. First, on
December 1 and 2, 2011, after the stay-away sanction had
been imposed, O’Brien returned to the social sciences
building to evaluate the building for compliance with the
Americans with Disabilities Act (ADA), as part of a class
12 O’BRIEN V. WELTY
assignment. He was confronted on both days by Dean
Gonzalez and other faculty members.
On the first day, Dean Gonzalez confronted O’Brien and
told him that he was not allowed in the building. O’Brien
told Gonzalez that he had a class assignment and that he was
therefore permitted to be in the building. Gonzalez called the
campus police. After the police arrived, they followed
O’Brien for about 15 to 20 minutes as he worked on the
assignment. Because of the delays occasioned by Dean
Gonzalez’s calling the campus police, O’Brien was unable to
complete the assignment.
On the second day, O’Brien came back to complete the
assignment, this time bringing his video camera with him.
Dean Gonzalez “again loudly confronted [O’Brien], scolding
him that he was not permitted to be there.” Another faculty
member in the sociology department, Dr. Matthew Jendian,
“loudly confronted” and then “confronted and pursued”
O’Brien as he was videotaping. The confrontation intensified
nearly to the point of physical violence. According to the
FAC, O’Brien continuously backed away from Jendian as he
was attempting to videotape the encounter. Gonzalez again
requested campus police. Jendian reported to the police that
O’Brien had been the aggressor in the confrontation. As a
result of Gonzalez’s claim that O’Brien was not allowed in
the building, campus police detained O’Brien until his
attorney arrived at the police station. After campus police
saw a copy of the stay-away order and an email from
O’Brien’s professor describing his assignment and
authorizing his presence in the building, they released
O’Brien. Vice President Oliaro afterwards informed O’Brien
that his presence in the building to work on his class
assignment had not violated his probation. However, “to
O’BRIEN V. WELTY 13
avoid confusion in the future,” Oliaro told O’Brien that going
forward he “expect[ed]” him to notify Dean Gonzalez’s office
at least 24 hours before entering the building.
Second, in spring semester 2012 O’Brien enrolled in two
courses that met on the second floor of the social sciences
building. O’Brien’s attorney contacted the campus police
ahead of time to inform them that O’Brien would be attending
classes in the building. On the first day of the semester,
O’Brien arrived early for class and sat down to eat lunch at a
table at the end of the second-floor hallway, near the CLS
department offices, where early-arriving students often ate
and chatted before class. As he sat down, a CLS professor
told him that he was not allowed in that hallway. The
professor informed Dean Gonzalez and the campus police.
Several days later Vice President Oliaro contacted O’Brien by
email to reiterate that he was not to be within 100 feet of CLS
offices or faculty unless he was attending class or on other
authorized business.
B. District Court Proceedings
O’Brien filed suit in state court alleging violations of his
constitutional rights, naming as defendants President Welty,
Vice President Oliaro, Dean Coon, Dean Gonzalez, Dr.
Torres, Dr. Lopes, Dr. Jendian, and 25 other unknown faculty
and campus law enforcement officers (collectively
“defendants”). Defendants removed to federal court.
O’Brien filed the operative FAC in federal court, alleging
violations of specific constitutional rights by specific
defendants under 42 U.S.C. § 1983, and a conspiracy to
violate his constitutional rights under § 1985. In particular,
he alleged that defendants imposed discipline under an
unconstitutionally overbroad and vague regulation, that they
14 O’BRIEN V. WELTY
imposed discipline for having engaged in speech and conduct
protected by the First Amendment, that they retaliated against
him for having engaged in protected speech and conduct, and
that they violated his right to equal protection, procedural due
process, freedom from unreasonable search and seizure, free
association, right to travel, and right to petition for
grievances. The videotape made by O’Brien on May 11 was
not attached to the FAC or otherwise made part of the record.
The district court granted defendants’ motion to dismiss
the complaint for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Relying on the “public forum”
doctrine, the district court held that the social sciences
building was a non-public forum, and that Fresno State could
therefore enforce a content-neutral regulation on speech. The
court held that O’Brien’s confrontation of Dr. Torres and Dr.
Lopes in their offices on May 11 could reasonably have been
perceived to be harassment and intimidation within the
meaning of the regulation. The district court further held that
the complaint did not allege facts sufficient to show that the
professors’ complaints, the disciplinary hearing, or the later
emails clarifying the sanctions were motivated by retaliation
for the content of O’Brien’s speech rather than O’Brien’s
violation of the regulation. The court rejected O’Brien’s
other constitutional claims. Finally, the court held that
because there had been no constitutional violation, defendants
were entitled to qualified immunity.
On appeal, O’Brien contests the district court’s dismissal
of his First Amendment claims. O’Brien is joined by amici,
who argue that California Code of Regulations, tit. 5,
§ 41301(b)(7) is unconstitutionally vague and overbroad both
facially and as applied to O’Brien.
O’BRIEN V. WELTY 15
We reject O’Brien’s facial and as-applied First
Amendment challenges to the regulation. However, we hold
that O’Brien has alleged sufficient facts showing retaliation
for protected speech to survive a motion to dismiss.
O’Brien’s other constitutional claims are waived for failure
to argue them sufficiently on appeal.
II. Standard of Review
This Court reviews de novo the district court’s dismissal
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Outdoor Media Grp., Inc. v. City of
Beaumont, 506 F.3d 895, 899 (9th Cir. 2007).
III. Harassment and Intimidation
We begin by considering O’Brien’s First Amendment
challenge to Fresno State’s decision that he violated the
Student Conduct Code, as codified in state regulations.
Section 41301(b)(7) of Title 5 of the California Code of
Regulations authorizes branches of the California State
University to impose discipline for “[c]onduct that threatens
or endangers the health or safety of any person within or
related to the University community, including physical
abuse, threats, intimidation, harassment, or sexual
misconduct.” Vice President Oliaro found, on behalf of
Fresno State, that O’Brien violated this regulation when he
confronted Dr. Torres and Dr. Lopes in their offices with his
video camera. O’Brien challenges this decision on two
grounds. First, he contends that the regulation on its face
violates the First Amendment because it is overbroad and
vague. Second, he contends that the university’s application
of the regulation punished him for engaging in speech and
speech-related conduct protected by the First Amendment.
16 O’BRIEN V. WELTY
A. Overbreadth and Vagueness
Under the “substantial overbreadth” doctrine, a statute or
regulation may be facially invalid under the First Amendment
if there is a “realistic danger” that it will “significantly
compromise recognized First Amendment protections of
parties not before the Court.” Bd. of Airport Comm’rs v. Jews
for Jesus, Inc., 482 U.S. 569, 574 (1987) (internal quotation
marks omitted). In other words, a regulation imposing lawful
limits on some expressive activities may nevertheless be
invalid if at the same time it “reaches too much expression
that is protected by the Constitution.” DeJohn v. Temple
Univ., 537 F.3d 301, 314 (3d Cir. 2008).
A regulation may also violate the First Amendment if it
is unconstitutionally vague. To pass muster, a regulation must
“allow persons of ‘ordinary intelligence a reasonable
opportunity to know what is prohibited.’” Foti v. City of
Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (quoting
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
Three rationales underlie the void-for-vagueness doctrine:
(1) individuals should not be punished for behavior they
could not have known was illegal; (2) vague laws allow
arbitrary and discriminatory enforcement; and (3) vague laws
may have a chilling effect on free speech. See Grayned,
408 U.S. at 108–09; Foti, 146 F.3d at 638.
O’Brien challenges § 41301(b)(7) on the ground that it is
both overbroad and vague. He argues that the terms
“intimidation” and “harassment” involve subjective
determinations that turn on whether a particular individual
finds the conduct to be intimidating or harassing. Thus, he
argues, conduct that is “offensive” but protected under the
First Amendment is covered by the regulation. Further, amici
O’BRIEN V. WELTY 17
point out that “harassment” is defined differently in various
California laws and California State University policies. They
argue that these varying definitions give administrators wide
latitude to enforce the regulation arbitrarily or to use
enforcement proceedings to silence disfavored speech.
We rejected similar arguments in United States v.
Osinger, 753 F.3d 939, 944 (9th Cir. 2014). In Osinger, we
held that “because 18 U.S.C. § 2261A [the federal stalking
statute], proscribes harassing and intimidating conduct, the
statute is not facially invalid under the First Amendment.”
753 F.3d at 944. We noted that “harass” “[is] not [an]
esoteric or complicated term[] devoid of common
understanding.” Id. at 945; see also United States v. Shrader,
675 F.3d 300, 310 (4th Cir. 2012) (“‘Harass’ and ‘intimidate’
are not obscure words.”), cert. denied, 133 S. Ct. 757 (2012).
The fact that the terms may in some cases entail interpretation
is not enough to sustain an overbreadth or vagueness
challenge. Osinger, 753 F.3d at 943–45.
In the challenged regulation before us, the terms
“harassment” and “intimidation” do not stand on their own.
Section 41301(b)(7) prohibits only “harassment” or
“intimidation” that “threatens or endangers the health or
safety” of another in the university community. Cal. Code
Regs., tit. 5, § 41301(b)(7); see College Republicans v. Reed,
523 F. Supp. 2d 1005, 1022–23 (N.D. Cal. 2007). This
regulation is therefore narrower and more precise than the
statute that was sustained in Osinger, as well as much
narrower and more precise than university harassment
policies that have been held overbroad by our sister circuits.
See DeJohn, 537 F.3d at 316–17 (policy prohibited conduct
which “had the purpose or effect of creating an . . . offensive
environment”); Dambrot v. Central Mich. Univ., 55 F.3d
18 O’BRIEN V. WELTY
1177, 1182 (6th Cir. 1995) (policy defined “harassment” as
behavior that subjected another to “an intimidating, hostile,
or offensive . . . environment”). Further, this circuit has
recognized the needs of educational institutions to protect
their employees and students from potentially harmful
conduct. See Harper v. Poway Unified Sch. Dist., 445 F.3d
1166, 1178 (9th Cir. 2006) (upholding discipline of student
who wore homophobic t-shirt because it “injure[d] and
intimidate[d]” others), vacated on other grounds as moot,
549 U.S. 1262 (2007). We therefore conclude that
§ 41301(b)(7) is neither unconstitutionally overbroad nor
vague. Rather, it permissibly authorizes California State
University branches to discipline students who engage in
harassment or intimidation that threatens or endangers the
health or safety of another person in the university
community.
B. Protected Conduct
A regulation that is not facially overbroad or vague may
nonetheless be unconstitutional as applied, in an individual
case, to constitutionally protected speech. However, we
conclude that the application of § 41301(b)(7) to O’Brien’s
confrontation of Dr. Torres and Dr. Lopes on May 11 did not
violate the First Amendment. We agree with the district court
that O’Brien has not alleged facts sufficient to show that the
second floor hallway and offices of the social sciences
building were public fora. See Souders v. Lucero, 196 F.3d
1040, 1044 (9th Cir. 1999) (holding that the outdoor space of
a university was not a public forum); see also Helms v.
Zubaty, 495 F.3d 252, 256–57 (6th Cir. 2007) (finding that
“open-door policy” did not make county offices public fora).
Therefore, the university could regulate speech and
expressive conduct as long as the regulation was “reasonable”
O’BRIEN V. WELTY 19
and viewpoint neutral. Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983). It is clear from the
text of § 41301(b)(7) that it is a viewpoint neutral regulation.
It is also clear that § 41301(b)(7)’s authorization of discipline
for conduct that “threatens or endangers the health or safety”
of others in the university community is reasonable, as it is
consistent with the university’s interest in “preserving the
property . . . for the use to which it is lawfully dedicated,” i.e.,
ensuring a safe context for learning and teaching. See Perry,
460 U.S. at 50–51.
Assuming the allegations in the FAC to be true, we also
conclude that Fresno State’s application of § 41301(b)(7) to
O’Brien’s conduct was reasonable. According to the FAC, on
May 11 O’Brien, without an appointment,
[A]pproached Defendant Torres’ office door
which was open. With video camera on,
Plaintiff asked Torres if he had approved of
the “America” “White Savage” poem
published in that “La Voz” student
newspaper. Defendant Torres refused to speak
to Plaintiff. Nevertheless, Plaintiff calmly
insisted on speaking to Torres about that
poem. Defendant Torres’ reaction was to pick
up his telephone and call the Fresno State
Campus Police. Plaintiff then left Defendant
Torres’ office . . . . Plaintiff then approached
the open office door of Defendant Lopes and
asked her the same series of questions, with
his video camera running. She refused to
answer the questions, and when Plaintiff
asked again, Lopes stated that she did not
20 O’BRIEN V. WELTY
want to talk to him. She went to the door,
closed it, and then called Campus Police.
The FAC alleges that Dr. Torres and Dr. Lopes both filed
complaints with the Fresno State campus police stating that
O’Brien was “threatening, was attempting to instigate a
physical altercation, and that they felt threatened.” We may
infer from the FAC that there was conflict in the testimony
before the hearing officer, with Torres and Lopes, on the one
hand, and O’Brien, on the other, differently characterizing
their interactions on May 11. After hearing the testimony,
Mr. Freeman, the hearing officer, prepared a report finding
that O’Brien had violated § 41301(b)(7) and recommending
discipline. Sustaining the hearing officer’s findings, Vice
President Oliaro concluded that Torres and Lopes
“reasonably could find [O’Brien]’s behavior to be
intimidating and harassing and were concerned for their
safety.” In so concluding, Oliaro construed § 41301(b)(7) as
forbidding conduct that could reasonably be understood as
threatening, irrespective of the subjective intent on the part of
O’Brien. Compare Elonis v. United States, 135 S. Ct. 2001,
2012 (2015); Virginia v. Black, 538 U.S. 343, 359 (2003).
Taking the allegations in the FAC as true, we conclude
that Freeman and Oliaro reached a permissible conclusion.
Professors at work in their personal offices do not generally
expect to be confronted without warning by a student asking
hostile questions and videotaping. If the uninvited student
refuses to cease hostile questioning and refuses to leave a
professor’s personal office after being requested to do so, as
O’Brien admits occurred here, the professor may reasonably
become concerned for his or her safety. O’Brien’s behavior
as described in the FAC could be considered “harassment” or
“intimidation” and threatening under an objective
O’BRIEN V. WELTY 21
reasonableness standard. It was thus permissible for Fresno
State to impose discipline on O’Brien for this conduct under
its reasonable and viewpoint-neutral regulation.
IV. Retaliation
Although we have determined that O’Brien could
lawfully be subject to discipline for his actions, that does not
end our inquiry. Otherwise lawful government action may
nonetheless be unlawful if motivated by retaliation for having
engaged in activity protected under the First Amendment.
For example, in Skoog v. County of Clackamas, 469 F.3d
1221, 1235 (9th Cir. 2006), we held that a plaintiff need not
establish the absence of probable cause for a police officer’s
seizure of the plaintiff’s personal property to make out a First
Amendment retaliation claim. Therefore, though O’Brien
was appropriately subject to discipline for his confrontation
of Dr. Torres and Dr. Lopes, he may state a claim under
§ 1983 if his allegations, taken as true, could plausibly show
that the defendants’ actions in disciplining him were
substantially motivated by his protected speech or expressive
conduct.
There are three elements to a First Amendment retaliation
claim, as we explained in Pinard v. Clatskanie Sch. Dist. 6J,
467 F.3d 755 (9th Cir. 2006):
[A] plaintiff must show that (1) he was
engaged in a constitutionally protected
activity, (2) the defendant’s actions would
chill a person of ordinary firmness from
continuing to engage in the protected activity
and (3) the protected activity was a substantial
22 O’BRIEN V. WELTY
or motivating factor in the defendant’s
conduct.
Id. at 770 (citing Mendocino Envt’l Cntr. v. Mendocino Cnty.,
192 F.3d 1283, 1300 (9th Cir. 1999)). Once a plaintiff has
made such a showing, the burden shifts to the government to
show that it “would have taken the same action even in the
absence of the protected conduct.” Id. at 770 (internal
citation and quotation marks omitted); see Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)
(establishing this framework in the public employee speech
context).
We note here that the case before us does not implicate
the Supreme Court’s student speech doctrine as applied in the
high school setting in Hazelwood School District v.
Kuhlmeier, 484 U.S. 260, 273 (1988), which requires
considering First Amendment rights “in light of the special
characteristics of the school environment.” Id. at 266
(internal quotation marks omitted). As we recently explained
in Oyama v. University of Hawai’i, No. 13-16524, 2015 WL
9466535, at *7–9 (9th Cir. Dec. 19, 2015), we have not
extended this doctrine to the university setting. While Pinard
arose in the context of public school student speech, the
framework it uses for evaluating retaliation claims is neither
drawn from nor limited to public school student speech cases,
and is applicable here.
Applying the Pinard framework, the district court held
that the FAC failed to state a plausible claim for retaliation
under the First Amendment. We disagree.
In ruling on a motion to dismiss under Rule 12(b)(6), we
determine whether the complaint “contain[s] sufficient
O’BRIEN V. WELTY 23
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 US. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Judged under this standard, we
hold that O’Brien’s FAC plausibly supports a First
Amendment retaliation claim.
First, O’Brien has alleged facts showing that he engaged
in speech and conduct protected by the First Amendment in
the months leading up to his May 11 confrontation with Dr.
Torres and Dr. Lopes. For example, beginning in fall 2010,
O’Brien posted on a website his opposition to the student
government president and the school administration. He also
made several public records requests to Fresno State. We
agree with the district court that O’Brien’s expression of his
views, as described in his complaint, “qualifies as
constitutionally protected activity” under the First
Amendment. See, e.g., Obsidian Fin. Grp., LLC v. Cox,
740 F.3d 1284, 1291 (9th Cir. 2014) (finding that the First
Amendment protects blog posts equally to traditional
journalism for purposes of defamation suits).
Second, defendants’ actions in disciplining O’Brien
would “chill a person of ordinary firmness” from engaging in
these protected activities. Pinard, 467 F.3d at 770. The test
is generic and objective. Whether O’Brien himself was, or
would have been, chilled is not the test. See Mendocino
Envt’l Cntr., 192 F.3d at 1300. In Pinard, we held that
suspension from extra-curricular activities “would lead
ordinary student[s] . . . in the plaintiffs’ position” to refrain
from protected speech. Pinard, 467 F.3d at 771. Dr. Torres,
24 O’BRIEN V. WELTY
Dr. Lopes, Dean Gonzalez, and Dr. Jendian each made
complaints to campus police regarding O’Brien. Dean Coon
charged O’Brien with violating the Student Conduct Code
and initiated disciplinary proceedings. After a hearing, Vice
President Oliaro imposed sanctions, including disciplinary
probation, that restricted O’Brien’s access to parts of the
campus and limited his involvement in student groups and
student government. It is entirely plausible that a jury could
find these actions “reasonably likely to deter [an ordinary
person] from engaging in” protected speech and conduct. See
Coszalter v. City of Salem, 320 F.3d 968, 970 (9th Cir. 2003).
Finally, the factual allegations in the FAC are sufficient
to support a reasonable inference that defendants’ actions
were substantially motivated by O’Brien’s protected speech
prior to the May 11 videotaping incident. We disagree with
the district court’s conclusion that only “rank speculation”
supported O’Brien’s contention that the disciplinary
proceedings and sanctions were retaliatory.
The FAC alleges that prior to May 11, as a result of
O’Brien’s political activities and his criticism of university
faculty and administration, Dean Coon “requested that
students and other faculty members gather information and
complaints to use against” him. At least one student provided
complaints and other documents to Coon pursuant to this
request. Some of the defendants, as well as other faculty
members, sent emails to President Welty, Vice President
Oliaro, and Dean Coon, “demanding that [they] do something
about [O’Brien].” The FAC is not clear as to the timing of
these requests, but one may reasonably infer that they were
made prior to May 11. In addition, at about the same time,
the director of alumni relations sent emails to other
administrators, including the university’s communications
O’BRIEN V. WELTY 25
director, requesting that they “do something” about O’Brien
and his website. On May 11 itself, before O’Brien sought to
videotape Dr. Torres and Dr. Lopes in their offices, O’Brien
overheard Lopes saying that O’Brien was “stalking” the
hallway, and Torres saying that the faculty “should post
‘wanted’ signs with pictures of [O’Brien’s] face on them to
mock [him] and to serve as a warning to other students and
faculty as to what [he] looked like and warn of [his] potential
presence.”
The FAC also alleges that at the disciplinary hearing on
September 13, O’Brien was not given a full and fair
opportunity to present his side of the story. The hearing
officer refused to look at, or to allow O’Brien to show, the
videotape of his encounters with Dr. Torres and Dr. Lopes
even though O’Brien represented that the videotape would
contradict Torres’ and Lopes’ accounts of what happened on
May 11. Dean Coon made, at most, a half-hearted attempt to
locate Detective Manucharyan, who was sitting in the lobby
prepared to testify, and who would have testified about the
contents of the videotape. And the university refused to
allow O’Brien to record the proceedings, or to obtain a copy
of the recording that the university made of the proceedings.
We do not hold that O’Brien’s due process rights were
violated in the hearing; that question is not before us. But we
do point out that the university, and several of the defendants,
did not facilitate — and indeed impeded — O’Brien in his
attempt to document and explain his side of the story.
Further, the hearing officer recommended only that
O’Brien be sanctioned by a “stay-away” order, prohibiting
him from coming within 100 feet of CLS faculty, staff,
offices, or classrooms, or from coming onto the second floor
of the social sciences building without prescheduled business,
26 O’BRIEN V. WELTY
a class, or an appointment. Vice President Oliaro sua sponte
imposed an additional sanction, putting O’Brien on
“disciplinary probation” through the spring 2012 semester.
O’Brien had enrolled as a junior at Fresno State in the fall of
2010, so the probation status imposed by Oliaro would last
for the anticipated duration of his time at the university. The
consequence of O’Brien’s probationary status was that, by
university rule, he could not be the president or treasurer of
the campus branch of Young Americans for Liberty, the
political advocacy group that O’Brien himself had founded.
Further, and also as a consequence of his probationary status,
O’Brien could not hold a position in Fresno State student
government. In other words, the sanction added by Oliaro
sua sponte, above and beyond the sanction recommended by
the hearing officer, took direct aim at O’Brien’s political
activities on campus and forbade him from engaging in such
activities for the remainder of his anticipated time at Fresno
State.
The FAC alleges, finally, that after sanctions were
imposed, university officials continued to impede O’Brien in
various ways. On December 2, 2011, Dr. Gonzalez called
campus police when O’Brien was in the social sciences
building even though she had been informed the previous day
that he was in the building pursuant to a class assignment.
O’Brien was detained by the campus police and was released
only after his attorney came to the police station with a copy
of the stay-away order and an email from O’Brien’s professor
describing the assignment that permitted him to be in the
building. Further, in the fall of 2012 university officials
deleted posts made by O’Brien on university-managed
Facebook pages, permanently blocking him from posting
about certain issues, while at the same time allowing posts
expressing left-leaning viewpoints to remain.
O’BRIEN V. WELTY 27
Considered together, the foregoing is enough to support
the claim that O’Brien’s “protected activity was a substantial
or motivating factor in the defendant[s’] conduct” in
conducting disciplinary proceedings and imposing sanctions.
Pinard, 467 F.3d at 770. The events leading up to and
including the hearing and imposition of sanctions are the
most strongly probative of defendants’ motivation. But
events after the imposition of sanctions have some relevance,
for they may plausibly be understood to show a continuation
of animosity toward the conservative point of view articulated
by O’Brien, as well as toward O’Brien himself. If O’Brien
can establish the facts alleged, the burden would shift to the
defendants, who can avoid liability if they can show that they
“would have taken the same action even in the absence of the
protected conduct.” Id.
O’Brien named seven defendants in this case. We hold
that the FAC states a First Amendment retaliation claim
against five of them — Vice President Oliaro, Dean Coon,
Dean Gonzalez, Dr. Torres and Dr. Lopes. We hold that the
FAC has not alleged sufficient facts to state a claim against
the remaining two — President Welty and Dr. Jendian —
who were essentially peripheral figures with insufficient
connection to the critical events to be held responsible for
actions taken against O’Brien.
We caution against overreading our opinion. The First
Amendment does not give a free pass to students who violate
university rules simply because they can plausibly show that
faculty or administrators disapprove of their political views.
Our holding is by no means intended to disable university
faculty and administrators from imposing discipline on
students whose misconduct is preceded by or accompanied by
the expression of opinions with which faculty members or
28 O’BRIEN V. WELTY
administrators strongly disagree. Specifically, our holding is
by no means intended to protect from discipline students
whose speech or conduct may reasonably be seen as
threatening or constituting a danger to members of the
university community. Indeed, as we have indicated above,
O’Brien’s conduct in the videotaping incident in this case was
appropriately subject to discipline. The only issue in dispute
is whether defendants imposed that discipline as retaliation
for O’Brien’s protected activity.
We hold that a retaliation claim has been stated because
the allegations of the FAC, if believed, could reasonably
support a conclusion that faculty members and administrators
at Fresno State not only disagreed with the expressed political
views of O’Brien, but also sought to punish and muzzle him
in retaliation for his expression of those views. That is, if the
facts alleged in the FAC are believed, a reasonable jury could
conclude that defendants sought to punish O’Brien for his
expression of his opinions, and to deter and even prevent him
from engaging in speech and conduct protected by the First
Amendment. In sum, the allegations in the FAC make it at
least “plausible” that defendants’ actions were substantially
motivated by opposition to O’Brien’s protected speech and
expressive conduct. See Twombly, 550 U.S. at 570; cf.
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
751–52 (9th Cir. 2001) (suggesting that evidence that
defendants knew of plaintiff’s protected speech and expressed
opposition to it can create a genuine dispute of material fact
on retaliatory motive to survive summary judgment). We
reiterate that on remand, even if O’Brien can establish the
facts in the complaint, the defendants may avoid liability if
they can show that they would have taken the same
disciplinary actions in the absence of O’Brien’s protected
activity. See Pinard, 467 F.3d at 770.
O’BRIEN V. WELTY 29
V. Qualified Immunity
The district court held that because defendants had not
violated any of O’Brien’s constitutional rights, they were
necessarily entitled to qualified immunity. The district court
did not need to reach the question of qualified immunity,
given its conclusion that defendants had not violated the
Constitution. By contrast, on the assumption that the
allegations of the FAC are true we have held that O’Brien has
stated a claim for retaliation, and the question of qualified
immunity is therefore before us.
“Qualified immunity is an affirmative defense that must
be raised by a defendant.” Groten v. California, 251 F.3d
844, 851 (9th Cir. 2001). When, as here, defendants assert
qualified immunity in a motion to dismiss under Rule
12(b)(6), “dismissal is not appropriate unless we can
determine, based on the complaint itself, that qualified
immunity applies.” Id.
“Determining whether officials are owed qualified
immunity involves two inquiries: (1) whether, taken in the
light most favorable to the party asserting the injury, the facts
alleged show the officer’s conduct violated a constitutional
right; and (2) if so, whether the right was clearly established
in light of the specific context of the case.” Krainski v.
Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ.,
616 F.3d 963, 970 (9th Cir. 2010) (citation and internal
quotation marks omitted). In this case, the district court held
that qualified immunity shielded defendants from suit
because the FAC “fail[ed] to set forth facts to show that any
constitutionally protected right was infringed by any
Defendant at any time.” As explained above, we disagree
30 O’BRIEN V. WELTY
with the district court and hold that the FAC pleads a
plausible First Amendment retaliation claim.
The constitutional right to be free from retaliation was
“clearly established at the time of defendants’ actions.”
Krainski, 616 F.3d at 969 (citing Saucier v. Katz, 533 U.S.
194, 202 (2001)). Retaliation for engaging in protected
speech has long been prohibited by the First Amendment.
See, e.g., Pinard, 467 F.3d at 770. We have previously made
it clear that there is a right to be free from retaliation even if
a non-retaliatory justification exists for the defendants’
action. Id.; Skoog, 469 F.3d at 1235. A reasonable official in
defendants’ shoes would thus have known that taking
disciplinary action against O’Brien in retaliation for the
expression of his views violated his First Amendment rights.
Our denial of qualified immunity at this stage of the
proceedings does not mean that this case must go to trial.
Once an evidentiary record has been developed through
discovery, defendants will be free to move for summary
judgment based on qualified immunity.
VI. Reassignment
O’Brien urges us to reassign the case to a different district
judge on remand. We reassign only in “rare and
extraordinary circumstances.” Krechman v. Cnty. of
Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (internal
citation and quotation marks omitted). We believe
reassignment is not warranted. Though the district judge
made an error of law, we have “no reason to believe that [he]
would be unable fairly and correctly” to oversee further
proceedings on remand. Id.
O’BRIEN V. WELTY 31
Conclusion
We affirm the district court in part, holding that
California Code of Regulations, tit. 5, § 41301(b)(7) does not
violate the First Amendment, either on its face or as applied
in this case. However, we reverse in part, holding that
O’Brien has alleged facts supporting his First Amendment
retaliation claim that are sufficient to survive a motion to
dismiss under Rule 12(b)(6) as to five of the seven
defendants. We also reverse the district court’s conclusion
that these defendants are, at this stage of the proceedings,
entitled to qualified immunity. Finally, O’Brien has not made
more than a “bare assertion” of his other constitutional claims
in either his opening or reply brief, and therefore any
challenge to the district court’s dismissal of these claims is
waived. Greenwood v. Fed. Aviation Admin., 28 F.3d 971,
977 (9th Cir. 1994). Each side is to bear its own costs on
appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.