Expelled White Student’s Suit Against Howard Law School Largely Dismissed, but Can Go Forward on Some Claims
February 6, 2024 | Tags: free speech, REASON
A short excerpt from today's long decision by Judge Trevor McFadden (D.D.C.) in Newman v. Howard Univ. School of Law (for more, read the whole thing):
Howard University School of Law expelled Michael Newman. It claims that it did so because he repeatedly sent disruptive emails to his classmates against school policy. Newman tells a different story. He claims that his expulsion was the culmination of two years of racist vitriol and abuse that he suffered at the hands of Howard students and administrators….
[T]he Court dismisses most of Newman's antidiscrimination claims for failure to adequately plead the existence of a material adverse action caused by his race. And it will dismiss most of his contract-based claims for want of a binding contract. Last, it will dismiss most of his remaining tort claims. That said, several of Newman's claims survive: all those directed against unnamed third parties, and several adequately pleaded claims directed against Howard and its employees.
The court rejects Newman's claim that the school violated some of its own policies, because it concludes the policies didn't form a binding contract. But it allows Newman's "breach of contract claim based on his scholarship agreement" (and related claim for "breach of the implied duty of good faith and fair dealing") to go forward:
Howard promised to pay Newman $26,000 per year in exchange for his meeting certain eligibility criteria…. And [Newman] alleges a breach: Howard refused to pay up.
Although that breach was paired with a breach of Newman's own, Newman plausibly alleges that his nonperformance of the academic qualification requirements was caused by Howard's misconduct. He alleges that professors adjusted their grading systems to disfavor him, that administrators "devised a ranking scheme in such a manner as to ensure [he] fell into the bottom half of the class" [more on that below -EV] and that they used subjective participation grades to translate his peers' biases into poor grades. He has thus plausibly alleged that Defendants' conduct is what prevented his performance, bringing his claims within the ambit of the prevention doctrine….
The court likewise allows a race discrimination claim based on this alleged breach to go forward (Newman alleged that the changes in the grading system stemmed in part from Newman's being white). Note that, as usual in a motion to dismiss, the court doesn't decide whether the allegations are factually accurate; it considers only whether, if the allegations are accurate, the defendant's conduct could indeed be said to be legally actionable.
The court rejects Newman's other discrimination claims, which claimed race-based disparate treatment, the toleration of a racially hostile environment, and retaliation for claims of discrimination.
And the court allows Newman's defamation claim to go forward but only as to two of the six statements he alleged were defamatory:
[The allegedly defamatory] statements include the following:
- "[Dean Danielle] Holley's testimony that Newman was argumentative with her and McGahee";
- Holley's testimony that "Newman continued using the listserv in 2021 after being asked multiple times to cease";
- Holley's description of Newman's email about his classmate's death as "defamatory";
- Holley's statement that "Newman had written [the classmate] died from the Covid-19 vaccine";
- Holley's statement that "Newman said the difference between black Americans and other Americans was that black Americans wanted the government to solve their problems for them";
- Holley's claim that Newman said "African-Americans suffer from hive mind."
The court concludes that some of the statements were true and therefore couldn't be defamatory:
First, Holley's statement that "Newman continued using the listserv in 2021 after being asked multiple times to cease," was substantially true….
Second, Holley's statement that "Newman had written [that a classmate] died from the Covid-19 vaccine" was substantially true. Newman alleges that he sent an "open letter calling on Holley to delay a pending vaccine booster deadline" and discouraging students from getting a COVID vaccine booster. And he alleges that his email "shared a link to a news report" regarding a recently deceased classmate, in which she was described as having died from "pulmonary embolism (PE), a condition scientifically linked to mRNA vaccines," like those for COVID.
Newman's argument about this statement is purely semantic. It is true enough that he did not say outright, based on these allegations, that his classmate died from the COVID vaccine. But the inescapable inference from his statements, taken together, is that he believes she did. He encouraged students to refrain from obtaining a vaccine booster, and, as a justification, pointed to a dead classmate who died of a condition linked to that vaccine. This is, at best, suggestive of precisely what Holley alleged—that Newman believed the COVID vaccine killed his classmate. And he cannot manufacture a defamation claim by relying on innuendo to hide the import of his statement.
Next, Holley's statement that "Newman said the difference between black Americans and other Americans was that black Americans wanted the government to solve their problems for them" was substantially true. Newman alleges that he said that "the black community" "believe[s] government solves problems" while he "only see[s] it causing problems." He also admits to asking whether "black voters didn't question turning to government for solutions."
To be sure, this is a closer case. Holley's articulation of Newman's statement was inartful. But her statement still tried to capture "the gist" of Newman's own remark. The clear thrust of Newman's statements is that he thinks African Americans are uncritical of government assistance or involvement and, indeed, that they ought to be more critical than they are. That is the same essential point conveyed by Holley's paraphrasing, which was therefore substantially true.
The court also concludes that the "[Newman was] argumentative with her and McGahee" statement is opinion. But it allows the defamation claim to go forward based on "two potentially actionable statements by Holley: first, her description of Newman's email about his classmate's death as 'defamatory,' and second, her claim that Newman said 'African-Americans suffer from hive mind.'"
Her description of Newman's email as "defamatory" implies certain underlying and objectively verifiable facts. Namely, that his email's factual claims were false and that they were injurious to some individual. The statement is therefore not protected opinion. Nor is it necessarily true. Based solely on the allegations in Newman's Complaint, it is far from clear that his email could be accurately described as defamatory. Perhaps this conclusion will change over the course of this case. At a later stage, the parties will be able to admit into evidence the actual text of the email and thus dispute its truth, as well as its injurious character. But at this point, based solely on Newman's allegations, Holley's statement was not protected.
Nor was Holley's statement that Newman said "African-Americans suffer from hive mind" protected. This statement appears to be false. Based on Newman's Complaint, he said only that "a specific group of classmates[,] … not African-Americans generally, suffered from hive mind." Holley's assertion was not an opinion because it was an objectively verifiable statement of fact about what Newman said. Nor was her statement substantially true because it changed the core meaning of Newman's statement from a critique of specific classmates to a commentary on African-Americans as a group.
The Court therefore dismisses all of Newman's defamation claims except those pertaining to Holley's description of Newman's email about his classmate's death as "defamatory" and Holley's claim that Newman said "African-Americans suffer from hive mind."
And the court dismisses Newman's intentional infliction of emotional distress claim:
The bar to recover under on a claim is high. Newman must plausibly allege conduct by Howard that is "utterly intolerable in a civilized society." He has not done so….
There also remain some claims against third parties, which weren't the subject of a motion to dismiss. Here's an extended excerpt from the factual allegations:
Newman's experience at Howard was turbulent from the start. Shortly after starting law school, Newman attended a symposium with his classmates. At the symposium, a black speaker stated that "if Biden and Harris won the White House, they would usher in a 'golden age of environmental justice.'" In response, Newman posted in a group chat with his classmates, "Where I part with the black community is where they believe government solves problems, I only see it causing problems." He likewise asked whether "black voters didn't question turning to government for solutions" and whether black individuals "reliably voting for the same party … disincentivized both parties from responding to the needs of black communities." These messages began what would ultimately devolve into a years-long conflict between Newman and his classmates and university administrators.
Newman's classmates reacted negatively to his post. One classmate called him "way outta pocket" and said that he hoped a professor would "drag [Newman] for filth." Another removed Newman from a class-wide group chat. And students met to discuss "next steps" in response to his comments. When Newman's classmates announced that meeting, one of his professors "replied jokingly, 'Whoever it is, I'll kill him!'", referring to Newman.
Just after New Year's, Newman sent his classmates a letter, attempting to explain himself. The letter came in four parts, titled, in order, "The Reactions," "My Comments," "My Background," and "Perpetuating Racial Aggression." The last section, Newman distributed to his classmates through a Howard email listserv. He followed that email with another, sending his classmates a link to a documentary titled Uncle Tom. This again sparked strong reactions from Newman's classmates. Many referred to his letter as a "manifesto," and two administrators separately contacted Newman to inform him that his use of the listserv violated university policy. Dean Danielle Holley told Newman "I request that you no longer send any emails to the Class of 2023 email list or any other law school email list."
Newman contacted the university president, Wayne Frederick, to complain about his treatment and alleged that he was facing racial discrimination. Frederick never responded to Newman's email. But minutes after Newman sent it, Holley contacted him and asked him to meet with law school administrators. Newman recorded the meeting—as he did many other meetings during this saga. In that meeting, Holley acknowledged that she had been forwarded Newman's email to Frederick.
Holley remarked in the meeting that Newman had caused "an incredible disruption to the Howard Law community." Holley noted that although Howard is a private institution, and therefore Newman "do[es]n't have any First Amendment rights in the Howard community," it is still "an institution that believes very much … in freedom of expression." But she informed Newman that she believed his comments over the past semester had been "a huge distraction" to the rest of the students, and asked that he "confine [him]self … to attending class, reading for class, studying, [and] doing [his] academic kind of success work" because "[w]e can't have a disruption to the academic environment."
Holley also noted that Newman had "made very serious claims that the law school ha[d] engaged in racial discrimination." She acknowledged that "[t]hose claims have now been forwarded to the EEOC office of the university and will be investigated." Still, she pressed Newman to admit that it would not be racial discrimination for his classmates or professors to disagree with the ideas he expressed.
At the meeting, Holley also addressed Newman's use of the school's email listservs. She told him, "[y]ou are not welcome, and I have told you now officially by email, to ever use a [sic] official class email list to do anything." As she put it, "those email lists are for official use of administration, staff, faculty, and for student events that are approved by use of the law school."
Last, Holley suggested that the law school "does not seem to be a very good fit for you." She noted that, "if you want to continue with us, … you're free to do that as long as you're in good academic standing and you have not violated any of the university rules." "But … this law school doesn't seem to be a good fit for you." Thus, she told Newman, "you may want to think about … your options after this semester to continue your legal education." …
Even beyond this, Newman's first year at Howard did not go well. His classmates referred to him with a slew of racial epithets. These included "mayo king" (or "king mayo"); "the White Panther", based on a popular Marvel character, the Black Panther; "keebler [sic] cookie"; and "snow possum." After his first year of law school, Newman found himself in the bottom half of his class, jeopardizing his scholarship….
In January 2022, halfway through the school year, he again ran afoul of the school's email policies. In late January, a group of students sent an open letter to Holley over the school listserv, protesting the school's return to mandatory in-person instruction. Holley responded positively using the same listserv. Soon after, Newman also tried to discuss the COVID pandemic using that listserv. He sent a message thanking his classmates for "voic[ing] their views openly" and criticizing the school's "often opaque and autocratic policies." But unlike the other students, Newman was admonished by Holley.
Wanting to continue his discussion of COV-related matters, but seeking to avo the listserv, Newman sent an email from his private email account. He blind carbon copied "a number of students," so they would all receive the same email. In this email, he "shared a link to a news report" about a Howard classmate who had recently died. The news report stated that "she had died from pulmonary embolism (PE), a condition scientifically linked to mRNA vaccines," like those for COV.
At this point, Holley emailed Newman stating that he had "continued to violate the University's email policy," by sending mass emails that his classmates described as "disgusting" and "disturbing." She therefore suspended his Howard email address and blocked his private email address from the law school's network. Holley also informed Newman that she would "bring student code of conduct charges" against him.
Holley and Newman filed administrative charges against one another on January 31. Holley complained that Newman had continually harassed his classmates and disturbed the law school's learning environment. Newman, for his part, alleged that Holley had misused university procedure in an effort to "intimate [him] from expressing information and views she disfavors" and to "control what information or opinions are shared among classmates."
Lawan Lanier-Smith, Director of Student Conduct & Community Standards, reviewed the complaint against Newman. She convened a panel to hold a hearing on Newman's alleged misconduct. The only witness at the hearing was Holley, whose testimony consisted of "numerous false claims, some having no clear relevance to her complaint" [again, these are Newman's allegations -EV]. After Holley finished testifying, Lanier-Smith asked her a single question—not related to any material fact in dispute—and denied Newman an opportunity to cross-examine or otherwise question her. She then proved Newman only 15 minutes to respond to Holley's charges and present his own case.
Several weeks later, the panel declared Newman "responsible" without explanation. "The Notice consisted solely of boilerplate with Newman's name and the word 'Responsible' pasted in." Newman appealed this decision, and the university vacated the panel's decision on the ground that Lanier-Smith had improperly denied Newman an opportunity to cross-examine Holley. The university then reassembled the same panel, and Newman sat for another hearing. The panel again found him responsible and recommended expulsion; this time the university obliged….