JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court are: (1) Plaintiff Jacob Zimmerman's Motion for Emergency Hearing on Preliminary Injunction, [dkt. 13]; (2) a Motion for Summary Judgment filed by Mr. Zimmerman and Plaintiff Sean Sumwalt, [dkt. 18]; and (3) a Cross-Motion for Summary Judgment filed by Defendants Board of Trustees of Ball State University (the "Trustees"), Jo Ann M. Gora, Alan Hargrave, and Michael Gillilan, [dkt. 25].
A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party's favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially
The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir.2003). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.
The key inquiry, then, is whether admissible evidence exists to support a plaintiff's claims or a defendant's affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir.1999). And when evaluating this inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve "any doubt as to the existence of a genuine issue for trial ... against the moving party." Celotex, 477 U.S. at 330, 106 S.Ct. 2548.
That cross-motions for summary judgment have been filed does not automatically mean that all questions of material fact have been resolved. Franklin v. City of Evanston, 384 F.3d 838, 842 (7th Cir.2004). The Court must evaluate each motion independently, making all reasonable inferences in favor of the non-moving party with respect to each motion. Id. at 843.
After having assessed the claims of the parties in accordance with the standards outlined above, the Court concludes that Defendants are entitled to summary judgment. Therefore, the Court has made all reasonable factual inferences in favor of Mr. Zimmerman and Mr. Sumwalt. See Celotex, 477 U.S. at 330 n. 2, 106 S.Ct. 2548.
Ball State University ("Ball State") is a state-supported institution of higher education located in Muncie, Indiana. [Dkt. 1 at 2, ¶ 3.] Jo Ann Gora is the President of Ball State, Alan Hargrave is Ball State's Associate Vice President for Student Affairs and Director of Housing and Student Life, and Michael Gillilan is Director of Ball State's Office of Student Rights and Community Standards ("OSRCS"). [Id. at 2, ¶¶ 4-6.] The OSRCS regulates students' conduct through implementing and administering the Code of Student Rights and Responsibilities (the "Conduct Code"). [Dkt. 26 at 3-4, ¶¶ 4, 7.] The Conduct Code, which applies to "all undergraduate and graduate students of Ball State ... and shall be deemed a part of the terms and conditions of admission and enrollment of all students," [dkt. 26-2 at 8, § 2.4], is posted on Ball State's website and made available in hard copy, [dkt. 26-1 at 2, ¶ 10]. Students are also provided notice of the Conduct Code and its rights and obligations during summer orientation and during "Welcome Week," a three-day program for incoming freshmen. [Id. at 2, ¶ 9.] As a condition of enrollment, students agree to be bound by the provisions of the Conduct Code. [Id. at 2, ¶ 7.]
Section V. of the Conduct Code provides, in relevant part:
[Dkt. 26-2 at 10-11.]
In the Fall of 2011, Mr. Zimmerman and Mr. Sumwalt (collectively, "the Students") were both enrolled at Ball State. [Dkt. 1 at 3, ¶ 9.] The Students had previously lived in an off-campus apartment with another male Ball State student (the "Target").
Shortly after moving out, the Students began playing a prank on the Target which involved creating a Facebook page for a fictitious female high school sophomore named "Ashley." [Id. at 3, ¶ 15.] Using this fictitious Facebook page, the Students posed as "Ashley" and initiated several on-line conversations with the Target. [Id.] The Students also recruited a fifteen year-old student at Southside High School, "Emily," to pose as "Ashley" in cell phone and text message communications with the Target. [Id. at 4, ¶ 17; dkt. 19 at 3, ¶ 10.]
In mid-October 2011, the Target proposed that he and "Ashley" meet and go to a movie together, and "Ashley" agreed to meet him at a local movie theatre. [Dkt. 1 at 4, ¶ 18.] "Ashley" communicated with the Target via text messaging leading up to his arrival at the movie theatre. [Id. at 4, ¶ 19.] When the Target entered the movie theatre lobby, the Students videotaped him with a cell phone video camera and told him that "Ashley" was fictitious and that the Target had actually been communicating primarily with them. [Id. at 4, ¶ 20.] The Students then posted their videotape of the Target on YouTube with the title "[the Target] is a pedophile." [Id. at 4, ¶ 21.] The videotaping and posting
On November 1, 2011, Dr. Gillilan, Director of the OSRCS, received correspondence from the Target complaining of harassment by the Students. [Dkts. 26-1 at 2, ¶ 11; 26-6.] In the correspondence, the Target detailed how the Students left a sandwich to rot in his room when they were living together, and described the Facebook communications and the ultimate creation and posting of the YouTube video. [Dkt. 26-6.] the Target further stated that, as a result of the Students' actions, he was having trouble focusing on school because he was in the music college with the Students and had to see them often, that he was a "nervous wreck," that he was "having trouble sleeping at night," and that he was "worried about what type of bullying [he] may be a victim of next." [Id. at 2.] The Target noted that he sought medical assistance and was prescribed Zoloft "to help [him cope] with this situation," and that the situation "has become extremely hindering to [his] progress in complet[ing his] degree." [Id.] He also stated that "[t]hey have not only mentally ripped me apart, but who is to say they are not planning something physically harmful." [Id.]
Dr. Gillilan met with the Target on November 2, 2011, and the Target provided further information and documentation regarding the alleged harassment, including Facebook screen-shots and YouTube postings and comments. [Dkt. 26-1 a 2, ¶ 12.] At the end of the meeting, Dr. Gillilan considered the OSRCS to be in receipt of a formal complaint from the Target. [Id. at 2, ¶ 13.]
On November 5, 2011, the OSRCS sent the Students letters informing them of their alleged involvement in potential violations of the Conduct Code. [Dkts. 19-3; 26-7.] The letters were substantially the same, and stated in part:
[Dkts. 19-3 at 1; 26-7 at 1 (emphases in originals).] The letter provided "
Ball State's investigation of the Target's complaint involved the following actions:
Based on its investigation, the OSRCS charged the Students each with two Conduct Code violations: (1) harassment; and (2) invasion of privacy. [Id. at 3, ¶ 16.]
Dr. Gillilan met with the Students to inform them of the charges against them, and they were given the opportunity to accept or deny responsibility for the Conduct Code violations. [Id. at 3, ¶ 17.] Both acknowledged and accepted responsibility by signing a December 2, 2011 document in which each checked the line reading "I accept responsibility for the violation indicated above" for both Harassment under Section 5.1.1 of the Conduct Code and Privacy Violation under Section 5.1.4 of the Conduct Code. [Dkts. 19-4 at 1; 26-8 at 1.] The letter they signed also provided that:
On December 6, 2011, Dr. Gillilan wrote separately to the Students to inform them that based on their acknowledgment of responsibility for the Conduct Code violations, the University Review Board ("Review Board") would be meeting to determine and recommend appropriate sanctions. [Dkts. 26-9; 26-10.] The Review Board met on December 9, 2011, and considered an OSRCS review summary prepared by Dr. Gillilan, [dkt. 26-11]; the Target's initial November 1, 2011 correspondence to Dr. Gillilan, [dkt. 26-6]; the student records of the Target and the Students; the December 2, 2011 written acknowledgments signed by the Students, [dkts. 19-4; 26-8]; a letter from the Students, [dkt. 26-12]; testimony and correspondence from character witnesses for the Students, [dkt. 26-13]; testimony and an impact statement provided by the Target, [dkt. 26-14]; testimony from one of the Target's parents; and screenshots of Facebook and You-Tube postings and comments, [dkt. 26-16]. At the December 9, 2011 meeting, the Review Board recommended sanctioning the Students by suspending them for one year, until Spring Semester 2013, as well as "the imposition of certain reflection and action to raise awareness of fellow students regarding the responsible use of social media." [Dkts. 26-1 at 5, ¶ 25; 26-17 at 5.]
Dr. Gillilan then met with the Review Board and requested that they "add [to the recommended sanctions] disciplinary probation upon return, continued restrictions against making contact with [the Target], and a meeting with [the] OSRCS prior to return." [Dkt. 26-1 at 5, ¶ 25.] The requirement that the Students meet with the OSRCS prior to their return to Ball State and the imposition of disciplinary probation for a calendar year upon return are "routine and uniform requirements of all students suspended by [Ball State]." [Id. at 5, ¶ 26.] The requirement that the Students take part in activities to raise awareness of fellow students regarding the responsible use of social media "arose in part from the suggestion of [the Students]." [Id. at 6, ¶ 27; see also dkts. 19-4 at 2; 26-8 at 2.]
On December 13, 2011, Dr. Gillilan sent letters to each of the Students, outlining the Review Board's recommended sanctions and his acceptance and imposition of those sanctions. [Dkts. 19-5; 26-18.] The letters also advised the Students of disciplinary probation and other conditions upon their return to Ball State, and discussed their right to appeal the sanctions imposed. [Id.]
The Students both appealed the sanctions decision, stating that:
[Dkt. 19-6 at 1-2.]
On December 23, 2011, Dr. Hargrave sent letters to each of the Students informing them that he had reviewed their appeal letter and their disciplinary files, had given careful review to the sanctions, and found "no grounds for appeal and am therefore upholding the sanction communicated to you by Dr. Gillilan." [Dkts. 19-7; 26-19 at 3, ¶ 15.]
Based on the sanctions decision, the Students were not allowed to register for classes for the Spring 2012, Summer 2012, or Fall 2012 semesters. [Dkt. 19-2 at 3, ¶ 22.] Mr. Zimmerman also lost his job at Ball State's radio-television center. [Id. at 3, ¶ 23.] Mr. Zimmerman met with Dr. Gillilan on November 9, 2012, in satisfaction of the condition precedent to Mr. Zimmerman's re-enrollment and return to Ball State for the Spring 2013 semester. [Dkt. 26-1 at 6, ¶ 30.] He is now re-enrolled at Ball State and the only condition remaining in dispute is that, in order to graduate, he must "engage in a project indicating reflection and action to raise awareness of fellow students regarding the responsible use of social media." [Id.]
On October 11, 2012, the Students filed a Complaint for Injunction and Other Equitable and Legal Relief against the Board of Trustees of Ball State, Dr. Gora, Dr. Hargrave, and Dr. Gillilan. [Dkt. 1.] They sue "pursuant to 42 U.S.C. § 1983" [id. at 1], and assert claims for First Amendment violations against Drs. Gillilan and Hargrave under color of state law, [id. at 6-7], First Amendment violations against Dr. Gora for "institutional liability," [id. at 7-8], due process violations against Drs. Gillilan and Hargrave, [id. at 8-9], and due process violations against Dr. Gora for "institutional liability," [id. at 9-10]. The Students seek: (1) a permanent injunction against Ball State and its administrators, faculty or staff, prohibiting Ball State from enforcing the Conduct Code with respect to off-campus conduct, or to conduct that does not occur at a Ball State hosted, sponsored or sanctioned event, or which does not involve the use of Ball State equipment or facilities; (2) an order requiring Ball State to "remove all references to this incident from the Students' files"; (3) an order requiring Ball State to notify all Ball State students of the limitations on enforcement of the Conduct Code they have requested; (4) actual damages for Mr. Sumwalt, including the increased tuition he paid to attend Butler University
At the outset, the Court notes that several of the parties' arguments have morphed during the briefing of the cross-motions for summary judgment. Indeed, as discussed more specifically below, at times the parties have drastically changed positions, they have abandoned arguments asserted in earlier briefs altogether, and/or they have ignored opponents' arguments. By way of understatement, the Court's task in evaluating those motions was unnecessarily cumbersome. In evaluating the arguments asserted, the Court is mindful of the principle, depicted below,
While the Court has tried its best to sort through the parties' legal arguments, to whatever extent their briefing strategy has caused the Court to overlook beneficial arguments, the Court deems those arguments waived either for lack of cogent development, for being inconsistent with positions previously taken, or for being raised for the first time on reply.
The cornerstone of the Students' claims is their argument that Ball State did not have the legal authority to regulate their conduct. Their first challenge claims their conduct could not be regulated because it took place off-campus. They also assert that Ball State's actions in disciplining them for the sandwich prank and the events leading up to and culminating in the YouTube posting fall outside of the grant of authority to state-funded educational institutions provided by the Indiana General Assembly in Indiana Code § 21-39-2-3 because their actions were neither unlawful nor objectionable. [Dkt. 19 at 8-19.] They also argue that Ball State lacks authority to regulate their actions because they constituted expressive conduct protected by the First Amendment. [Id. at 19-25; dkt. 31 at 24-34.] Additionally, they argue that even if Ball State had the authority to apply the Conduct Code to off-campus behavior, their actions did not constitute Conduct Code violations. [Dkt. 19 at 25-26.] Based on their argument that Ball State lacked the authority to regulate their off-campus conduct, the Students argue that Defendants violated their right to due process by subjecting them to the disciplinary process in the first place.
Defendants argue in their cross-motion that the Conduct Code, and its application to the Students' actions, is within the authority granted to Ball State by the Indiana General Assembly, [dkts. 26 at 12-18; 34 at 4-8], and that the Students waived any objection to application of the Conduct Code by signing acknowledgments that they had violated the Conduct Code. [dkt. 34 at 8-10]. They also argue that any claims for money damages against the Board of Trustees, Dr. Gora, Dr. Gillilan and Dr. Hargrave in their official capacities are barred by the doctrine of sovereign immunity, that there are no individual capacity claims asserted against Drs. Gillilan and Hargrave and that, even if there were, they are entitled to qualified immunity for those claims. [Dkts. 26 at 18-22, 38-40; 34 at 18-20.] Finally, they assert that the Students received due process, and that they did not engage in protected speech. [Dkts. 26 at 22-28; 34 at 11-14.]
While the Seventh Circuit Court of Appeals has instructed that "[t]he ability of governments to waive the benefit of sovereign immunity demonstrates that the doctrine is non-jurisdictional," Blagojevich v. Gates, 519 F.3d 370, 371 (7th Cir.2008), the Court will discuss the immunity issue first because the focus of the Students' case — whether Ball State had the authority to regulate their off-campus conduct — and almost every other issue raised in the pending motions are intertwined with the immunity issue.
Defendants initially argue that any claims for monetary damages against them are barred by the Eleventh Amendment to the United States Constitution, because they are sued only in their official capacities, [dkt. 26 at 18-20]. The Students respond that they "do not contest Defendants' claim that the Eleventh Amendment bars individuals from obtaining money damages in a 42 U.S.C. § 1983 action with respect to an official capacity suit," but that Defendants "misstate[] the full nature of the relief [they] seek in this action, and the bases for those claims." [Dkt. 31 at 15.] Specifically, the Students argue that they seek equitable relief (a permanent injunction against allegedly unlawful enforcement of the Conduct Code to off-campus conduct, and removal of "all references to this matter from [their] academic records," [id. at 16]), which does not contravene the Eleventh Amendment. The Students recrafted arguments specifically overlook the fact that they requested recovery of damages in their Complaint.
The Court finds that any claims for monetary damages against the Trustees, Dr. Gora, who is only sued in her official capacity, and Drs. Gillilan and Hargrave in their official capacities (to the extent those claims exist), are barred by the Eleventh Amendment. Council 31 of the Am. Fed'n of State, County & Mun. Emples. v. Quinn, 680 F.3d 875, 881-82 (7th Cir. 2012). What remains for discussion are the Students' individual capacity claims against Drs. Gillilan and Hargrave (which, as discussed below, the Court finds the Students have adequately distinguished from official capacity claims), and their claims for equitable relief against all of the Defendants.
Defendants argue that the Students have not adequately alleged claims against Drs. Gillilan and Hargrave in their individual capacities because they do not allege they "took any action other than in the regular performance of their official duties, performed as a matter of duty," [Dkt. 26 at 20]. Defendants further argue that, to the extent there are individual capacity claims against Drs. Gillilan and Hargrave, those
The Court finds, as the Defendants appear to concede by failing to address the Students' arguments, that the Students have adequately alleged individual capacity claims against Drs. Gillilan and Hargrave. They allege that Drs. Gillilan and Hargrave acted under color of state law, and do not allege that their individual actions were simply to carry out an official policy or custom. [Dkt. 1 at 6-9, ¶ ¶ 37-45, 52-63.] This is sufficient to establish that the Students have alleged individual capacity claims against Drs. Gillilan and Hargrave. See, e.g., Miller v. Smith, 220 F.3d 491, 494 (7th Cir.2000) (stating "where the plaintiff alleges tortious conduct of an individual acting under color of state law, the defendant has been sued in her individual capacity," and finding that plaintiff alleged individual capacity claims where "at no time did he suggest that either [defendant] espoused a custom or policy of" engaging in the wrongdoing alleged).
The question then becomes whether Drs. Gillilan and Hargrave are entitled to qualified immunity in connection with those individual capacity claims. In order to proceed against Drs. Gillilan and Hargrave in their individual capacities, the Students must: "(1) adequately allege the violation of a constitutional right, and (2) that right must be clearly established at the time of the alleged violation, so that a reasonable public official would have known that his conduct was unlawful." Sonnleitner v. York, 304 F.3d 704, 716 (7th Cir.2002).
The crux of this case is the Students' claim that Ball State did not have the authority to regulate their conduct under Indiana Code § 21-39-2-3. Defendants argue that simply alleging that application of the Conduct Code to the Students' conduct exceeded the authority granted by § 21-39-2-3 does not allege a constitutional violation. [Dkt. 26 at 18 ("Whether the [Conduct Code], or its application here to discipline the students, strictly complies with state law does not, in and of itself, state a claim for a violation of federal due process.... Similarly, whether or not a college's rules are followed to the letter or largely ignored in a disciplinary charging decision or adjudicatory process in higher education carries little weight with regard to a First Amendment claim").] The Students do not respond to this argument.
The Students specifically disavow any procedural due process claim they may have in their reply brief, stating that Defendants "misunderstand[] the actual nature of [their] due process claims, which are not predicated on the manner in which the [Conduct Code] was applied to their case, but rather, that the [Conduct Code] was applied to their case at all, since such an application exceeded Ball State's legislatively granted authority." [Dkt. 31 at 19 (emphases in original).] While they do argue that they were "forced" to sign the acknowledgments of Conduct Code violations
If the Court is incorrect in determining the Students are not asserting a procedural due process claim, their lack of cogent argument waives such a claim, and in any event the undisputed facts establish the requisite notice and opportunity to be heard. Defendants are entitled to judgment on this issue.
As for substantive due process, the ability to invoke such protection is very limited. Lee v. City of Chicago, 330 F.3d 456, 467 (7th Cir.2003). "The essence of due process is the `protection of the individual against arbitrary action of government.'" Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir.2005) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). In order to succeed, the Students must show that Defendants exercised their power "without any reasonable justification," and engaged in "an abuse of power that `shocks the conscience.'" Dunn, 158 F.3d at 965.
In Dunn, two students were given Fs in band class after playing unauthorized solos during a band performance at an athletic event. The students there asserted a substantive due process claim based on the school's entire disciplinary classifications and penalty structure. Id. ("Although the briefs are not entirely clear on this point, we understand from oral argument the [plaintiffs] are also asserting a legislative violation of substantive due process rights, insofar as they are attacking [the school's] written disciplinary classifications and penalty structure"). The Seventh Circuit Court of Appeals held that the school policy at issue "comes nowhere close to a constitutional violation," finding that "education itself is not a fundamental right," and that the decision to "stack the deck so that these students would fail Band must be sustained unless it is wholly arbitrary." Id. at 966. The court noted that — as here — the students "freely conceded that they had violated a school rule," and that "the rule was designed to preserve discipline in the classroom and to punish student insubordination, and that these were legitimate interests on the part of the school district." Id.
Even assuming the Students had some property right in their education at Ball State, they do not allege that Defendants acted in such a way as to shock the conscience. And even if acting outside the
Indiana Code § 21-39-2-3 gives state universities the authority to:
The Students attempt to draw a distinction between the regulation of on-campus versus off-campus student activity, arguing that Indiana Code § 21-39-2-3 provides "significantly more limited authority to regulate off-campus behavior" than on-campus behavior. [Dkt. 19 at 9-10 (emphasis in original).] The Students ignore the statute's clear grant of authority to regulate certain conduct "wherever the conduct might occur" — in other words, whether it is on- or off-campus. Ind. Code § 21-39-2-3 (emphasis added). The Court finds that the location of the misconduct is irrelevant, so long as the conduct meets the criteria of § 21-39-2-3 discussed below.
At the outset, the Court notes that the Students radically changed their position during briefing of the summary judgment motions regarding the grant of authority to Ball State under Indiana Code § 21-39-2-3. They initially argued that "Ball State's authority to regulate the off-campus actions of its students must meet two very specific criteria: first, the behavior the University seeks to regulate must be an act that is either `unlawful' or `objectionable;'...,"
The Students chose their strategy in support of their summary judgment motion, and are bound by that choice in their response/reply. See Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir.2008) (finding argument raised for the first time on appeal to be waived because the party must "accept the consequences of [its] decision" to present its claims under one legal theory instead of another); Griffin v. Bell, 694 F.3d 817, 822 (7th Cir.2012) ("[A]rguments raised for the first time in a reply brief are deemed waived"). The Court finds that the Students have waived any argument that Ball State can only regulate off-campus activity that is unlawful, and not such activity that is merely objectionable.
In any event, despite the waiver issue, the Students' newly-asserted reading of Indiana Code § 21-39-2-3 is wrong. Under Indiana law — which this Court must follow in interpreting a state statute, Util. Trailers of Indianapolis, Inc. v. Util. Trailer Mfg. Co., 2013 WL 1137500, at *2-3, 2013 U.S. Dist. LEXIS 36721, *7-8 (S.D.Ind.2013) — a court "will not engage in statutory interpretation unless the language of the statute is ambiguous," Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 508 (7th Cir.1998). Where a statute is unambiguous, "the court will give effect to the plain, ordinary, and usual meaning of the language of the statute." Id. There is nothing ambiguous about the plain language of the statute, which allows Ball State to "prevent unlawful or objectionable acts..." "wherever the conduct might occur." Ind. Code 21-39-2-3 (emphasis added). The statute does not require that regulated off-campus acts be unlawful in addition to being objectionable. See Hartman, 883 N.E.2d at 778-79 (Ind.2008) ("[T]he Indiana General Assembly has given state higher educational institutions the power... to `prevent unlawful or objectionable acts,' of the institution's students, faculty, and employees `wherever the conduct might occur'"). Accordingly, the Court will analyze whether the sandwich prank and the actions surrounding the YouTube video were objectionable.
The Court will give the word "objectionable" as used in Section 21-39-2-3 its plain, ordinary, and usual meaning. Brownsburg Area Patrons Affecting Change, 137 F.3d at 508. Merriam-Webster's Dictionary defines "objectionable" as "undesirable [or] offensive." http://www. merriam-webster.com/dictionary/ objectionable (last viewed April 11, 2013). In connection with the sandwich prank, the Students simply argue that "while [the sandwich prank] might be labeled as `irksome,' `annoying,' `irritating,' or even `mean,' it strains credulity to argue that the actions were `objectionable' in any objective
As for the events leading up to and culminating in the making and posting of the YouTube video, despite the Students' characterization otherwise, the Court does not view the issue of whether these events were objectionable as a "close call" — they were. Indeed, the type of scheme the Students designed and carried out was featured in a 2010 movie called Catfish, and has become the subject of a reality television show with the same name which airs on MTV.
The Students took their "catfishing" scheme a step further — videotaping the Target's reaction when he found out that "Ashley" did not exist, and posting the video on YouTube with the caption "[the Target] is a pedophile." The Court fails to see how their actions could not be considered objectionable.
Having found that the actions for which the Students were disciplined were objectionable, the Court considers whether they also either: "(1) seriously threaten the ability of the state educational institution to maintain the state educational institution's facilities; or (2) violate the reasonable rules and standards of the state educational institution designed to protect the academic community from unlawful conduct or conduct presenting a serious threat to person or property of the academic community." Ind. Code § 21-39-2-3. In another example of disjointed briefing, the Students only address the first prong, arguing that their actions did not seriously threaten the ability of Ball State to maintain its facilities. [Dkt. 19 at 18-19.] Later in their opening brief, they argue that their conduct did not violate the Conduct Code, but not in connection with Indiana Code § 21-39-2-3. [Id. at 25-26.] They simply make a more general argument that the videotaping had to have taken place at a location where the Target had some expectation of privacy, and he did not have that expectation at the movie theatre.
Tellingly, the Students both acknowledged that they violated the Conduct Code when they signed the December 2, 2011 letters. [Dkts. 19-4; 26-8.] The letters set forth which Conduct Code provisions they were accused of violating, and the Students both checked spaces indicating "I accept responsibility for the violation indicated
The Students argue that their acknowledgment of wrongdoing is irrelevant, given that "Ball State had no authority to discipline [them] to begin with ... [and] that [they] should never have been confronted with the demand to `accept responsibility' for their actions in the first place." [Dkt. 31 at 11.] This argument is a non-starter. Their acknowledgment of wrongdoing goes directly to whether they violated the Conduct Code, which is relevant in determining whether disciplining them for the conduct was within Ball State's authority in the first place.
While the Students attempt to characterize their case as a challenge to Ball State's authority to regulate their off-campus conduct, the facts indicate that they did not have an issue with that authority — and in fact impliedly agreed with it by acknowledging they violated the Conduct Code and suggesting possible sanctions — until Ball State determined to expel them.
Additionally, the Conduct Code provisions the Students violated were "designed to protect the academic community from unlawful conduct or conduct presenting a serious threat to person or property of the academic community." Ind. Code § 21-39-2-3. The Target was a member of the Ball State community, and the Students' conduct presented a serious threat to his well-being, as evidenced by the Target's statements that he was a "nervous wreck," that he was "having trouble sleeping at night," and that he was "worried about what type of bullying [he] may be a victim of next." [Id. at 2.] The Target also stated
The Court concludes that Ball State had the authority to regulate the Students' conduct in this case under Indiana Code § 21-39-2-3 because it was objectionable and it violated the Conduct Code's provisions, which were designed to protect the academic community from conduct presenting a serious threat to members of that community. Accordingly, the Court cannot conclude that Drs. Gillilan and Hargrave somehow acted egregiously or so as to shock the conscience by following the disciplinary procedure outlined in the Conduct Code, so their substantive due process claim fails. See Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1013 (7th Cir.2002) (finding no substantive due process violation where ample evidence supported school's decision to expel student).
The Students also allege that Defendants violated their constitutional rights because both the sandwich prank and the events leading up to and including the recording and posting of the YouTube video are expressive conduct protected by the First Amendment. [Dkt. 19 at 20-25.] Specifically, they argue that "conduct sufficiently imbued with elements of communication falls within the scope of the First and Fourteenth Amendments," that the sandwich prank was designed to "express their dissatisfaction and frustration with [the Target's] behavior, and, thereby encourage [the Target] to change his behavior," that the Facebook page and on-line contact with the Target through "Ashley" were "clearly communication," and that by videotaping at the movie theatre and posting the video on YouTube they "intended that others on the Ball State campus who knew [the Target], as well as [the Target] himself, would see the video, and that [the Target] would thereby be publicly embarrassed." [Id.]
Defendants argue that merely intending to express an idea does not necessarily turn conduct into speech, and that neither the sandwich prank nor the events leading up to and culminating in the YouTube posting were, in fact, protected expressive conduct. [Dkt. 26 at 28-32.] Defendants also argue that the fictitious communications the Students engaged in cannot be protected speech because they were false. [Id. at 33-34.]
In yet another "change of horses," the Students argue on reply that "[t]he Students' MSJ Brief argued that the `sandwich prank' and the YouTube video were protected speech because they were `imbued with elements of communication[;]... [s]ince filing the brief, further research and reflection has persuaded the Students' [sic] that, while maintaining that the actions are indeed protected speech, that is not the real issue." [dkt. 31 at 24.] They then go on to reiterate their main argument that Ball State had no authority to discipline them for their conduct in the first place, but then also argue that creating the Facebook page and posting fictitious information on that page were protected speech. They do not address Defendants' arguments that creating the video and posting it to YouTube were not protected speech, even though they had originally asserted that they were.
Based on the parties' briefing of this issue, as best as the Court can discern, it appears that the Students have limited
There is a disconnect with the Students' argument that the creation of the Facebook page and the fictitious postings constitute protected speech: even if they do, they are just part of what the Students were disciplined for. This re-tooled argument ignores the fact that videotaping the Target and posting that video to YouTube were large components of the overall scheme that violated the Conduct Code. If that is not protected speech, as the Students appear to concede, then that conduct was not entitled to constitutional protection. In any event, the Court concludes that creation of the Facebook page and the fictitious postings, assuming they were "speech" at all, were not protected speech.
The Students rely upon United States v. Alvarez, ___ U.S. ___, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), for the proposition that just because speech is false, it is not "categorically excluded from First Amendment protection." [Dkt. 31 at 27.] Defendants argue that Alvarez did not change prior precedent denying First Amendment protection to certain kinds of false speech, including false speech that "involved `some other legally cognizable harm associated with a false statement, such as an invasion of privacy....'" [Dkt. 34 at 16.]
Alvarez involved a constitutional challenge to the Stolen Valor Act, 18 U.S.C. §§ 704(b) and (c), which "makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved." Alvarez, 132 S.Ct. at 2539. The Supreme Court struck down the Stolen Valor Act, holding that simply because speech is false does not mean that it cannot enjoy First Amendment protection, but also keeping in place previous precedent holding that certain types of false speech are not protected. The Supreme Court stated:
Id. at 2544.
The Supreme Court went on to distinguish cases involving false speech plus "some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious
Accordingly, Alvarez stands for the proposition that just because speech is false does not mean it is not entitled to constitutional protection. It does not stand for the proposition that all false speech is entitled to constitutional protection. Here, the creation of the Facebook page and the posting of fictitious messages on that page are much more than just false. First, the Students knew the communications were false; indeed, their falsity was the whole reason they were created — so that the Target would believe the communications and engage in a relationship with "Ashley." Second, the communications were part of a larger scheme to trick the Target into engaging in a relationship with "Ashley," and ultimately entrap him into committing a crime by soliciting a minor. It appears to the Court that these communications fall within the type which do not enjoy constitutional protection, not merely because they were false, but because they were made knowingly and in furtherance of a scheme to inflict emotional harm on the Target. Their falsity is "not irrelevant to [the Court's] analysis, but neither [is] it determinative." Id. at 2545.
In any event, the Court need not make that determination because, as discussed below, even if the creation of the Facebook page and posting communications on that page were protected under the First Amendment, and even if the Students' failure to establish that the sandwich prank and creation and posting of the YouTube video are protected speech was not fatal to their First Amendment claims, Drs. Gillilan and Hargrave still enjoy qualified immunity because the Students' right to protection for that speech was not "clearly established at the time of the alleged violation, so that a reasonable public official would have known that his conduct was unlawful." Sonnleitner, 304 F.3d at 716.
The Court has rejected the Students' claim that their constitutional due process rights were violated because Ball State's application of the Conduct Code to their off-campus conduct exceeded the school's authority. The Court struggled mightily to discern the constitutional underpinning of such a claim, and concludes Drs. Gillilan and Hargrave are entitled to qualified immunity as to such claim as it is anything but clearly established.
With respect to the First Amendment claim, the Students' claims fare no better Even assuming that creating the Facebook page and posting communications on that page constituted speech protected by the First Amendment, the status of that speech as protected was not clearly established when the Students were disciplined.
The Alvarez decision itself, which the Students rely upon for their argument that the creation of the Facebook page and postings on that page are protected speech, establishes the previous uncertainty surrounding the issue of whether false speech is protected by the First Amendment.
In sum, the Students' official capacity claims for monetary damages against all Defendants are barred by the Eleventh Amendment's grant of sovereign immunity, and any individual capacity claims for monetary damages against Drs. Gillilan and Hargrave are barred by the doctrine of qualified immunity.
The Students seek various types of injunctive relief, including: (1) a permanent injunction against Ball State and its administrators, faculty or staff prohibiting Ball State from enforcing the Conduct Code with respect to off-campus conduct; (2) an order requiring Ball State to remove all references to "this incident" from the Students' files;
For the foregoing reasons, the Court
