I'm struck - if sadly not surprised - by the extreme reaction of the student which precipitated the school's disciplinary orders. She's in for a rude awakening in the actual practice of law: as the saying goes, it ain't beanbag. She might consider a transfer to Yale.
I graduated from the U of Idaho College of Law. Judge Nye is by Idaho standards far from an extreme conservative. Professor Seaman never struck me as anything but a concerned professor. I don’t know the students involved but I’m guessing they are all relatively young and enthusiastic but clumsy vocalists about their “rights”. Judge Nye’s decision strikes me as extremely reasonable. I’m not sure what the law school was thinking but it strikes me as an overreaction.
Oh wow, very interesting—thanks for this inside info! I have passing familiarity with many law schools but not Idaho Law, so I'm grateful for these insights.
This woman, while I may agree with her politically, is over-reacting. If I read this correctly, the students who she claims were "harassing" her were expressing support for the LGBTQ community. What's the problem here? When I was in law school in a red state, I just avoided or ignored the people who were supposed proselytizers. Leaving a note inviting someone to speak is not "harassment."
I agree. They were trying to be kind in their own way. I can totally see her not wanting to have anything to do with them, but to escalate like this and call it violence - it just seems to over the top.
This reminds me of the "eggshell plaintiff" doctrine, which somehow I remember from torts class 500 years ago. Though under that doctrine, the defendant "takes the plaintiff as she finds him" (if I recall) - meaning it's not a defense to say that the plaintiff was just oversensitive in some way. Thankfully that doctrine does not apply to Title IX
By supporting the LGBTQ community, they were saying that we don't agree with every tenet of the organization. How does she not see that? I know plenty of Christians who don't agree with everything the Bible says. As a liberal, I also think that the way politics is nowadays, people can't find common ground. It's in our interest to make those types of Christians our allies.
Once standardized testing goes fully out the window, we can expect more such ridiculousness. Pretty soon Americans will be boasting about sending their kids to schools outside the US.
In general, I agree with everyone whose reaction is that it sounds like the student who got offended is over-reacting — and the university probably should have declined to get involved. After reading the opinion, though, it’s not clear that this was a good case for a court to be issuing a preliminary injunction either.
The court found that plaintiffs had a likelihood of success on a viewpoint discrimination claim — but the court reached that determination without holding a hearing, and the record seems very thin on at least two factual issues that need to be sorted out before you can say the school was engaged in viewpoint discrimination:
1. The only action the school took was issuing mutual “no contact” orders — the plaintiffs were directed not to contact Jane Doe, and Jane Doe was likewise directed not to contact the plaintiffs (albeit the “direction” to Jane Doe was made at her own request). The school argued that this is a non-punitive measure designed to ensure there is no unwanted communication between these students going forward. The court acknowledges in its opinion that it doesn’t know how often the school issues no-contact orders, or what standards it applies in giving them, which seems like something you would need to know before you can say it was viewpoint discrimination. If the school issues mutual no-contact orders whenever they’re requested, for example, then it’s not viewpoint-discrimination to issue them here.
2. While the stuff Lat summarizes above is totally anodyne, the defendants also submitted an affidavit claiming that someone at the event said that gay people were condemned to “swing from the gallows of hell.” The circumstances of this statement seem murky. The court just sort of reconciles conflicting evidence on the papers and concludes that the plaintiffs probably were not the ones who made that comment. But it’s entirely unclear who said it (or to whom the comment was directed, or exactly how it was made). Conceivably the school could have some concerns about that allegation, which — whether or not these plaintiffs actually made the comment or not — could be a basis for a “no contact” order (at least depending on how readily such orders are normally issued, see point #1).
The court also gives short shrift to the other PI factors, but the main effect of the PI is to vacate the no-contact order to and therefore to allow the plaintiffs to initiate contact with Jane Doe. But Jane Doe has obviously made clear, at this point, that she doesn’t want to be contacted. Are the plaintiffs really suffering an irreparable injury by being told not to contact someone who clearly does not want to be contacted? Does the public interest really favor preliminary judicial intervention so the school can’t tell some students not to contact another student who doesn’t want to be contacted?
Again, I agree with everyone’s sentiments on the morality of the situation. Running to a school administrator and demanding a no-contact order over a political disagreement is silly. But from a strict legal point of view, I would have thought the court would at least hold a brief hearing to get the facts straight before issuing a PI in a case like this.
These are all fair and thoughtful points, even if I disagree with them. I think the record was clear enough; as Judge Nye notes in the "gallows of hell" footnote, that allegation doesn't change the analysis even if you assume it's true. Even if combined with everything else, that one isolated utterance wouldn't constitute "harassment." Harassment would involve leaving notes on Jane Doe's carrel every day, tracking her down around campus, calling her repeatedly, and the like—all after she said "please stop," which everyone agrees she never did. As for "irreparable injury," the case law holds that having your constitutional rights violated constitutes irreparable injury.
I don't think Chief Judge Nye is an outlier in how he applied the PI factors, though. I think there's a (perhaps unfortunate) trend of letting "likelihood of success on the merits" drive the entire analysis when it comes to requests for emergency relief. See also the Supreme Court's "shadow docket."
Thank you for the thoughtful reply — and of course, I agree with the basic view (which I think everyone shares) that the university’s handling of this is silly. Two reactions to your comments on the legal merits, though:
1. I agree with the court's finding that the “gallows of hell” comment probably is not enough, without more, to constitute “harassment” under Title IX. But just means that Title IX did not actually *require* the university to issue the “no contact” orders. It doesn’t necessarily follow that the university engaged in content or viewpoint discrimination by issuing the orders.
While the court articulates a plausible theory that the university targeted these plaintiffs because they expressed conservative viewpoints (pp. 15-16), the court doesn't seem to have any context around what the university's actual practices are for issuing "no contact" orders. If it is in fact the case that this university routinely issues such orders whenever one student states they don't desire further contact from another student (or that a fairly minimal showing of need is sufficient), then the plaintiffs wouldn't have a strong "viewpoint discrimination" claim. While it's not a Title IX violation standing alone, the "gallows" comment and other factors might have caused the university to reasonably think that there's a risk further unwanted contact eventually could escalate into harassment -- or at least interfere with Jane Doe's educational environment -- and maybe that's enough under their policy to justify issuing an order like this. One can easily imagine a viewpoint-neutral policy that would lead to a no-contact order being issued on these facts.
2. It also feels strange to issue a PI when the main effect of doing that is to vacate a narrow "no contact" order, leaving plaintiffs free to initiate contact with someone who clearly does not want to be contacted. In other contexts (telemarketing, stalking/harassment), I wouldn't think it's a First Amendment problem for the government to say a speaker cannot initiate further contact with a particular individual who has specifically said they don't want to be contacted. The university insists its "no contact" order is non-punitive. If it really is just a means of documenting that these students were formally told that initiating any further contact is unwelcome, it's hard to see that it's really a deprivation of their free speech rights. While Jane Doe is behaving unreasonably in requesting such an order, legally speaking, it is ultimately her right to decline to have contact with other students, no matter her reasons. Freedom of speech doesn't entail the right to force someone else to listen.
Thanks for a well-reasoned and thoughtful column. The facts, as presented in the original complaint and reflected in the briefs provided Nye, suggest that the actual violence in this case was to the time and civility one might normally expect respected in an academic setting (ex YLS).
As an openly queer ex-Christian fundamentalist lawyer so much about this fact pattern is upsetting. But it is so important and thank you for bringing it to our attention !
I'm struck - if sadly not surprised - by the extreme reaction of the student which precipitated the school's disciplinary orders. She's in for a rude awakening in the actual practice of law: as the saying goes, it ain't beanbag. She might consider a transfer to Yale.
I graduated from the U of Idaho College of Law. Judge Nye is by Idaho standards far from an extreme conservative. Professor Seaman never struck me as anything but a concerned professor. I don’t know the students involved but I’m guessing they are all relatively young and enthusiastic but clumsy vocalists about their “rights”. Judge Nye’s decision strikes me as extremely reasonable. I’m not sure what the law school was thinking but it strikes me as an overreaction.
Oh wow, very interesting—thanks for this inside info! I have passing familiarity with many law schools but not Idaho Law, so I'm grateful for these insights.
"I’m not sure what the law school was thinking..."
Very likely some variation of "finally an excuse to stick it to these racist, sexist, homophobic Christian a**holes!"
Of which there have been many for decades. . .
This woman, while I may agree with her politically, is over-reacting. If I read this correctly, the students who she claims were "harassing" her were expressing support for the LGBTQ community. What's the problem here? When I was in law school in a red state, I just avoided or ignored the people who were supposed proselytizers. Leaving a note inviting someone to speak is not "harassment."
I agree. They were trying to be kind in their own way. I can totally see her not wanting to have anything to do with them, but to escalate like this and call it violence - it just seems to over the top.
This reminds me of the "eggshell plaintiff" doctrine, which somehow I remember from torts class 500 years ago. Though under that doctrine, the defendant "takes the plaintiff as she finds him" (if I recall) - meaning it's not a defense to say that the plaintiff was just oversensitive in some way. Thankfully that doctrine does not apply to Title IX
By supporting the LGBTQ community, they were saying that we don't agree with every tenet of the organization. How does she not see that? I know plenty of Christians who don't agree with everything the Bible says. As a liberal, I also think that the way politics is nowadays, people can't find common ground. It's in our interest to make those types of Christians our allies.
Once standardized testing goes fully out the window, we can expect more such ridiculousness. Pretty soon Americans will be boasting about sending their kids to schools outside the US.
Great post. Many important points all very succinctly stated.
In general, I agree with everyone whose reaction is that it sounds like the student who got offended is over-reacting — and the university probably should have declined to get involved. After reading the opinion, though, it’s not clear that this was a good case for a court to be issuing a preliminary injunction either.
The court found that plaintiffs had a likelihood of success on a viewpoint discrimination claim — but the court reached that determination without holding a hearing, and the record seems very thin on at least two factual issues that need to be sorted out before you can say the school was engaged in viewpoint discrimination:
1. The only action the school took was issuing mutual “no contact” orders — the plaintiffs were directed not to contact Jane Doe, and Jane Doe was likewise directed not to contact the plaintiffs (albeit the “direction” to Jane Doe was made at her own request). The school argued that this is a non-punitive measure designed to ensure there is no unwanted communication between these students going forward. The court acknowledges in its opinion that it doesn’t know how often the school issues no-contact orders, or what standards it applies in giving them, which seems like something you would need to know before you can say it was viewpoint discrimination. If the school issues mutual no-contact orders whenever they’re requested, for example, then it’s not viewpoint-discrimination to issue them here.
2. While the stuff Lat summarizes above is totally anodyne, the defendants also submitted an affidavit claiming that someone at the event said that gay people were condemned to “swing from the gallows of hell.” The circumstances of this statement seem murky. The court just sort of reconciles conflicting evidence on the papers and concludes that the plaintiffs probably were not the ones who made that comment. But it’s entirely unclear who said it (or to whom the comment was directed, or exactly how it was made). Conceivably the school could have some concerns about that allegation, which — whether or not these plaintiffs actually made the comment or not — could be a basis for a “no contact” order (at least depending on how readily such orders are normally issued, see point #1).
The court also gives short shrift to the other PI factors, but the main effect of the PI is to vacate the no-contact order to and therefore to allow the plaintiffs to initiate contact with Jane Doe. But Jane Doe has obviously made clear, at this point, that she doesn’t want to be contacted. Are the plaintiffs really suffering an irreparable injury by being told not to contact someone who clearly does not want to be contacted? Does the public interest really favor preliminary judicial intervention so the school can’t tell some students not to contact another student who doesn’t want to be contacted?
Again, I agree with everyone’s sentiments on the morality of the situation. Running to a school administrator and demanding a no-contact order over a political disagreement is silly. But from a strict legal point of view, I would have thought the court would at least hold a brief hearing to get the facts straight before issuing a PI in a case like this.
These are all fair and thoughtful points, even if I disagree with them. I think the record was clear enough; as Judge Nye notes in the "gallows of hell" footnote, that allegation doesn't change the analysis even if you assume it's true. Even if combined with everything else, that one isolated utterance wouldn't constitute "harassment." Harassment would involve leaving notes on Jane Doe's carrel every day, tracking her down around campus, calling her repeatedly, and the like—all after she said "please stop," which everyone agrees she never did. As for "irreparable injury," the case law holds that having your constitutional rights violated constitutes irreparable injury.
I don't think Chief Judge Nye is an outlier in how he applied the PI factors, though. I think there's a (perhaps unfortunate) trend of letting "likelihood of success on the merits" drive the entire analysis when it comes to requests for emergency relief. See also the Supreme Court's "shadow docket."
Thank you for the thoughtful reply — and of course, I agree with the basic view (which I think everyone shares) that the university’s handling of this is silly. Two reactions to your comments on the legal merits, though:
1. I agree with the court's finding that the “gallows of hell” comment probably is not enough, without more, to constitute “harassment” under Title IX. But just means that Title IX did not actually *require* the university to issue the “no contact” orders. It doesn’t necessarily follow that the university engaged in content or viewpoint discrimination by issuing the orders.
While the court articulates a plausible theory that the university targeted these plaintiffs because they expressed conservative viewpoints (pp. 15-16), the court doesn't seem to have any context around what the university's actual practices are for issuing "no contact" orders. If it is in fact the case that this university routinely issues such orders whenever one student states they don't desire further contact from another student (or that a fairly minimal showing of need is sufficient), then the plaintiffs wouldn't have a strong "viewpoint discrimination" claim. While it's not a Title IX violation standing alone, the "gallows" comment and other factors might have caused the university to reasonably think that there's a risk further unwanted contact eventually could escalate into harassment -- or at least interfere with Jane Doe's educational environment -- and maybe that's enough under their policy to justify issuing an order like this. One can easily imagine a viewpoint-neutral policy that would lead to a no-contact order being issued on these facts.
2. It also feels strange to issue a PI when the main effect of doing that is to vacate a narrow "no contact" order, leaving plaintiffs free to initiate contact with someone who clearly does not want to be contacted. In other contexts (telemarketing, stalking/harassment), I wouldn't think it's a First Amendment problem for the government to say a speaker cannot initiate further contact with a particular individual who has specifically said they don't want to be contacted. The university insists its "no contact" order is non-punitive. If it really is just a means of documenting that these students were formally told that initiating any further contact is unwelcome, it's hard to see that it's really a deprivation of their free speech rights. While Jane Doe is behaving unreasonably in requesting such an order, legally speaking, it is ultimately her right to decline to have contact with other students, no matter her reasons. Freedom of speech doesn't entail the right to force someone else to listen.
“Gallows of hell” footnote 😂
Thanks for a well-reasoned and thoughtful column. The facts, as presented in the original complaint and reflected in the briefs provided Nye, suggest that the actual violence in this case was to the time and civility one might normally expect respected in an academic setting (ex YLS).
As an openly queer ex-Christian fundamentalist lawyer so much about this fact pattern is upsetting. But it is so important and thank you for bringing it to our attention !