SAN FRANCISCO (CN) - Fresno State University must face First Amendment claims for disciplining a politically outspoken student who confronted two professors about a poem published in the student newspaper that contained controversial lines about the United States, the Ninth Circuit ruled Thursday.
A three-judge panel found that while Neil O'Brien was subject to the discipline imposed by the university for videotaping his confrontations with the two professors, a dispute remains as to whether the university imposed that discipline as retaliation for O'Brien's political speech.
O'Brien, who describes himself as a "constitutional conservative," formed the Fresno chapter of the student organization Young Americans for Liberty, organized events for the Central Valley Tea Party, and frequently attended student government meetings while a student at Fresno State, according to the panel's 31-page ruling.
He soon became an outspoken critic of the university's faculty and administration, objecting to their support for the student body president, who was an undocumented immigrant. O'Brien created a website on which he posted information about the student body president and criticized Fresno State's separate graduation ceremony for Latino students.
In May 2011, O'Brien was upset by a poem in "La Voz de Aztlan," a supplement to the Fresno State student newspaper published by the Chicano and Latin American Studies Department. O'Brien objected to the way in which the poem characterized the United States, which included calling it "the land robbed by the white savage" and the "place of greed and slavery," according to the ruling.
Taking a video camera with him, O'Brien separately approached two professors - defendants Dr. Maria Lopes and Dr. Victor Torrres - in their offices to confront them about the poem.
While videotaping, O'Brien asked the professors whether they had approved the poem's publication. Both professors refused to answer, and both called and filed complaints with the campus police.
The university held a judicial hearing on the incident and ultimately found that O'Brien had violated California 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 ruling said.
Fresno State imposed sanctions that prohibited O'Brien from coming within 100 feet of the Chicano and Latin American Studies Department's faculty, staff, offices or classrooms, and also placed him on "disciplinary probation" through the spring 2012 semester.
As a consequence of the probationary status, 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.
O'Brien's civil rights lawsuit was thrown out by U.S. District Judge Anthony Ishii for failure to show that the professors' complaints and the disciplinary hearing were motivated by retaliation for the content of Obrien's speech, rather than for O'Brien's violation of the student code regulation.
The Ninth Circuit panel agreed with Ishii that O'Brien's actions were subject to university discipline, finding that professors at work in their personal offices "do not generally expect to be confronted without warning by a student asking hostile questions and videotaping" and, therefore, the two professors in this case may have reasonably been concerned for their safety, the panel found.
However, the panel disagreed with Ishii that O'Brien did not provide sufficient evidence to show the possibility of a retaliatory motive for the discipline.