U.S. District Court affirms First Amendment right to complain in rejecting motion to dismiss former student's complaint

A case in Virginia has provided a welcome stand against retaliation for students exercising their First Amendment rights. On March 30, the U.S. District Court for the Western District of Virginia rejected a motion to dismiss by the defendants in Deegan v. Moore, finding that student Jennifer Deegan had been well within her rights to voice complaints about Virginia Western Community College’s nursing program, and that the response of Assistant Dean Melanie Moore and other administrators to issue a misconduct charge against her was a violation of these rights.

The Case

According to the narrative in Deegan’s complaint, which the court relied on in Thursday’s ruling, Deegan’s criticism of the nursing program at VWCC stemmed from her concerns over what she perceived to be turnover problems and a lack of qualified instructors.

Disappointed and frustrated by the program’s teaching standards, Deegan wrote a letter to VWCC’s Board of Trustees about her concerns. Deegan noted that by this point, she had already heard Assistant Dean of Nursing Melanie Moore – one of the defendants – criticize the program, although she refused to continue discussing the issue with a student who raised the topic during a class.

The day after sending the letter, Deegan spoke up in one of her nursing classes, voicing her complaints about pop quizzes and lack of instruction. According to Deegan’s complaint, she voiced these concerns in a non-disruptive manner during a group discussion where fellow students were also raising issues with the program, so that her comments were not a detour from the subject matter of the class.

After this class, Deegan attended a meeting with Dean of Health Professions Carole Graham to discuss her concerns, and scheduled a meeting with VWCC’S President Dr. Robert Sandel, Graham, Moore, and VWCC’s Vice President Elizabeth Wilmer. In her complaint, Deegan notes that it was after this meeting that the defendants – Moore, Graham and Dean of Student Services Lori Baker – “caused or encouraged” the filing of a student misconduct report, charging her with disruption and verbal abuse.

Graham and Barker informed Deegan of the charge in their Sept. 3 meeting, which Sandel, Wilmer, and Moore did not attend.

Six days later, Deegan formally filed a grievance outlining her problems with the nursing program. Among her complaints were that “teachers were bullying nursing students and that student concerns were met with hostility, threats, and disciplinary action.” After a meeting with Wilmer, Deegan’s grievance was determined to be unfounded.

A week later, Deegan met with Baker about the misconduct charge. The court record notes that the meeting only came about after Deegan directly asked Baker for one, despite the fact that Baker’s investigation into the charge should have included an obligatory meeting. In addition, Baker refused to listen to a recording that Deegan brought with her of the nursing class during which she had reportedly been disruptive.

At some point after that meeting, but prior to her misconduct hearing, Deegan resigned from the nursing program.

On June 6, 2016, Deegan filed a complaint of First Amendment retaliation against Moore, Graham and Baker in U.S. district court, alleging that her criticism of VWCC’s nursing program was protected speech and that the student misconduct charge was retaliation from the defendants. The defendants moved to dismiss, arguing that Deegan failed to state viable claims against them and that they are entitled to qualified immunity from paying damages because, even if their actions did violate the law, they wouldn’t have been in a position to know the illegality at the time.

The Right to Complain

In deciding the case, U.S. District Judge Elizabeth Dillon applied the First Amendment retaliation test. Firstly, it asked whether Deegan’s speech was protected by the First Amendment. Dillon rejected the college’s claim that students are protected only if their speech involves matters of public concern. Even if that had not been the case, Dillon added, Deegan’s speech arguably was of public concern, since it involved the quality of public educational services.

“Although Deegan’s exact words are not alleged, some of her statements allegedly concerned the quality of education nursing students were receiving at VWCC,” Dillon wrote. “Those statements, which relate to the quality of public education and the training of local health care professionals, could at least plausibly touch matters of public concern.”

Dillon went on to state that the court could not conclude that Deegan spoke in a time and place not intended for such speech:

“Most of these occasions were plainly non-disruptive: three were outside of class in personal conversations or meetings scheduled to discuss Deegan’s concerns, and one was a written communication to the Board of Trustees. Although Deegan spoke during a Nursing 238 class as well, she alleges that the statements were not disruptive and that she spoke in context of a larger in-class discussion about the quality of the nursing program.”

Next, the court tackled the defendants’ claim that Deegan has not stated a viable retaliation claim because the alleged retaliatory act – filing the misconduct charge against her – did not adversely affect Deegan’s ability to exercise her First Amendment rights. In retaliation cases, the judge wrote, the retaliatory act must go beyond a mere “inconvenience” to the speaker; the college claimed that since Deegan never received any actual disciplinary sanction, the filing of the charge could not by itself be a constitutional violation.

The judge disagreed, finding that just the fact of being brought up on misconduct charges could “chill” the fortitude of a reasonable speaker. However, the judge did agree that Deegan failed to establish any causal connection between Moore and that complaint, so Moore was dismissed as a defendant.

Ultimately, the court found that Deegan had plausibly stated a First Amendment retaliation claim, and that her complaint can continue for consideration.

The important takeaway for all college students, including journalists, is that complaining about the quality of the educational program does not constitute a substantial disruption, and is part of an individual’s protected speech.

This case is also important in drawing clear lines that university administrators can’t cross in using the student conduct system to silence student critics. With this ruling, the court – which denied the defendants’ claim that they are entitled to qualified immunity – made explicit that filing an unfounded disciplinary complaint against a student, even if the student isn’t found guilty, violates the First Amendment on the grounds of the intimidation it poses.

A fear of retaliation from administrators remains a prominent concern among student journalists and their advisors, and this ruling marks one of the few recent times where the court has taken the student’s side.

In September 2015, a federal district court ruled against Muscatine Community College student journalists’ request for a primary injunction in their lawsuit against the school’s top administrators for intimidation. The students accused the administrators of harassing them to avoid undesirable news stories about the college, for example by reducing their funding and replacing a full-time advisor with a part-time adjunct instructor.

In June 2016, the San Diego American Civil Liberties Union filed a lawsuit against administrators at UC-San Diego after it cut funding for satirical newspaper, The Koala, along with all student media, apparently in response to The Koala publishing an article mocking students’ desire for safe spaces on campus. The university insisted that the timing was coincidental, and on March 6, 2017, a federal judge dismissed the case.

Deegan’s case, however, seems to demonstrate that taking a stand against retaliation for being outspoken about an institution’s flaws can succeed, so long as a cause-and-effect relationship can be proven. This is only the early stage of the case, and Deegan will still have to prove at trial that the facts bear out as her complaint alleges them — but at least she will get that chance.