No First Amendment Violation in Requiring Law Student to Meet with “Behavior Intervention Team” Related to …
April 19, 2023 | Tags: free speech, REASON
From Singh v. Amar, decided Dec. 5 by Judge Sue Myerscough (C.D. Ill.):
Plaintiff … is a second-year law student at the University of Illinois College of Law. Mr. Singh enrolled in the University on a full-tuition merit scholarship and eventually was invited to join the Illinois Law Review.
Shortly after beginning his first semester, Mr. Singh met with Defendant Virginia Vermillion, the law school's Dean of Students, to amend his law school application. He alleges that Dean Vermillion responded to his request by remarking that "[y]ou fucking [M]iddle [E]asterners are untrustworthy." Mr. Singh is of Sikh origin.
After his first semester, Mr. Singh filed formal complaints against instructors who he believed had graded his coursework and exams capriciously. Mr. Singh also had conflicts with other students and school administrators. The school made several informal attempts to resolve Mr. Singh's concerns and disputes, but those attempts were unsuccessful.
In April 2022, Dean Vermillion contacted the University of Illinois Behavioral Intervention Team (BIT) to share her concerns regarding Mr. Singh's behavior. Dean Vermillion alleged that Mr. Singh had threatened Dean Vermillion and other administrators, made female instructors and students uncomfortable, and shown signs of "disjointed" thinking.
Illinois law requires that post-secondary institutions take preventive and proactive action to prevent campus violence. The BIT therefore assesses and monitors "students exhibiting aberrant, dangerous, or threatening behavior." To ensure that the BIT's work is unimpeded, the University's various codes of conduct require the subject of a BIT complaint to comply with any "reasonable" directives. Failure to comply with BIT's directives can result in disciplinary sanction, including dismissal.
In June 2022, Defendant Katherine Snyder, the University's Associate Dean of Students and a member of the BIT, reached out to Mr. Singh to request an informal, non-disciplinary meeting regarding Dean Vermillion's claims. Dean Snyder wrote that such a meeting was "a necessary and required step in the process when we are made aware of situations such as this one." But Mr. Singh declined to accept Dean Snyder's invitation. Instead, Mr. Singh responded that the First Amendment shielded him from "compulsory speech," demanded access to his student records, and threatened to take legal action.
On November 18, Mr. Singh filed this suit pursuant to 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The Complaint1 alleges that Defendants—all officials, employees, and trustees of the University of Illinois—violated Mr. Singh's First, Fifth, and Fourteenth Amendment rights by compelling him to meet with the BIT, retaliating against him for his exercise of his right to free speech, and subjecting him to the strictures of an unconstitutionally vague code of conduct….
Mr. Singh seeks … a preliminary injunction … [that] would bar Defendants from subjecting him to further disciplinary process during the pendency of this case….
The first question is whether denying Mr. Singh an injunction will cause him irreparable harm. Mr. Singh argues that any number of consequences—from a compulsory meeting with the BIT to the premature demise of his legal career—would follow. In response, Defendants contend that "the stakes are much lower." They say that Mr. Singh's "decision not to meet with BIT" would be "the sole cause of any 'irreparable harm' he now claims to face."
Irreparable harm "means an injury that money cannot repair." Put differently, irreparable harm is that which cannot be rectified by a favorable final judgment and an award of money damages or a permanent injunction. "Not every conceivable injury entitles a litigant to a preliminary injunction," and "[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with … an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."
As noted above, Mr. Singh alleges two discrete irreparable harms. He alleges that in the absence of an injunction he will be compelled to speak with the BIT, and in so doing will suffer a violation of his First Amendment right "to refrain from speaking at all." Mr. Singh also alleges that he will be expelled from the University if he continues to assert that right by declining to meet with the BIT.
The gravity of Mr. Singh's allegations is obvious. And the disciplinary sanctions that Mr. Singh may face are troubling. But the harms he alleges here are too speculative to warrant the extraordinary measure of preliminary injunctive relief. Prohibiting the University "from enforcing a universally applicable disciplinary code does not seem to this court, on this limited record, to be a reasonable solution to this very difficult problem."
First, Mr. Singh has not shown that meeting with the BIT will cause him irreparable constitutional harm. The First Amendment prohibits state institutions from compelling individuals "to voice ideas with which they disagree." As the parties agree, the University's codes of conduct obligate Mr. Singh to comply with the BIT's "reasonable" requests. But nothing indicates that the University intends to force Mr. Singh to engage in the kind of speech protected by the First Amendment. The codes of conduct do not require that Mr. Singh take a particular position or disavow a particular viewpoint. Compare Pl.'s Ex. G (requiring meeting with BIT members "to get to the bottom of your many conflicts and the allegations you assert in them") with Miller v. Skumanick (M.D. Pa. 2009), aff'd sub nom. Miller v. Mitchell (3d Cir. 2010) (requiring that teenagers accused of "sexting" expressly repudiate the activity, in writing, to avoid criminal prosecution). Indeed, the codes of conduct do not require that Mr. Singh utter a single word. On this record, the Court cannot find that by meeting with the BIT, Mr. Singh will suffer an irreparable harm.
Nor has Mr. Singh shown that allowing the University's disciplinary process to move forward will cause him irreparable harm. Much—if not all—of the reasoned case law suggests otherwise. E.g., Noakes v. Case Western Reserve Univ. (N.D. Ohio 2021) (finding consequences of pending medical-school disciplinary proceeding neither "certain" nor "immediate"); Doe v. Univ. of Chicago (N.D. Ill. 2017) (finding student's claim that disciplinary process would "threaten[ ] his reputation and his educational opportunities … too speculative to constitute irreparable harm").
Mr. Singh alleges that the only path forward ends in his expulsion. If that proves to be the case, or if the University's disciplinary process is otherwise procedurally infirm, then Mr. Singh's dismissal from law school may well constitute an irreparable harm. Yet the possibility of a sanction is not the same as its guarantee. Until Mr. Singh's "hearing is eventually held, we do not know that harm will result; a tribunal might very well clear [Mr. Singh] of any wrongdoing." And until these processes have run their course, the Court cannot find a clear showing of irreparable harm.
The decision was appealed, but has now apparently been settled, so the appeal will likely be dismissed (but the district decision will remain as potentially persuasive precedent). Congratulations to Katherine Tierney and Michael D Hayes (Husch Blackwell LLP), who represent the university defendants.
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