Does Free Speech Exist at a Private University? (Short Answer: No)

You may (or may not) have heard the news about the former student of Regent University’s law school for expelling him. If you are unaware, Regent the Christian university where Pat Robertson is president (yes, “that” Pat Robertson). Personally, I am NOT a fan of Pat Robertson, nor regent university; I respect his right to believe and speak what Robertson does – but I don’t care for him. I am a Christian who tries to distance himself from those types of characters.

Back to the story, the student, Adam Key, posted a picture on Facebook and also on Regent’s listserv which appeared to show Pat Robertson boldly giving the finger to the camera while broadcasting on the 700 show. Robertson was actually scratching the side of his face in a way that looked rather natural at the time, but the image looks as if Robertson is making an obscene gesture. Regent Law School did not see the humor of Key’s posting the image. Regent ordered him to take the photo down and either apologize or write a legal memo on his right to post the photo. Key took down the photo, refused to apologize, and wrote the legal memo. To make a long story short, Key was suspended, ordered to undergo a psychological evaluation, and then eventually dismissed from the school. As any reasonable law student would do, he is now suing the Virginia university.

I recently read an interesting legal analysis of the lawsuit by Professor Howard Wasserman that I thought would be worth sharing since it appears some educational legal analysis on the kind of issue I frequently get questions about (the link to his blog where this originally appeared is below):

"Last week, Key filed a lawsuit in the Southern District of Texas against Regent and Robertson, alleging violations of his First and Fourteenth Amendment rights, a violation of a provision of the Higher Education Act, and various state tort claims, including defamation (Key alleges that Robertson told the media that Key had "manipulated" the video image of Robertson), breach of contract, and fraudulent inducement (he alleges that he was fraudulently lead to believe that Regent was an open intellectual environment that allowed for dissent in public debate, that it was not at the mercy of Pat Robertson, and that it would not punish a student for engaging in political expression).

"This all makes a fun story. as it always seems to when Robertson enters the public debate. The Complaint even quotes several of Robertson's more infamous remarks. And Key is a unique enough figure that he would make a fine addition to the rogue's gallery that forms the pantheon of First Amendment heroes. Unfortunately for Key, this lawsuit has no chance.

"First, I am not sure the Southern District of Texas is the proper venue for this case. Key lives in Texas and his venue argument appears to be that Regent sent recruiting letters to him in Texas that convinced him to apply and attend the school and that his dissenting views would be welcomed and tolerated. I suppose this might work for the fraudulent inducement claim, because the letters sent to Texas are the inducements. But venue looks to where "a substantial part of the events or omissions giving rise to the claim occurred." And for all his other claims, the key events or omissions occurred in Virginia. At the very least, venue seems more appropriate in Virginia and this could be a candidate for a discretionary transfer.

"Second, the constitutional claims fail because there is no allegation (or event mention) anywhere in the complaint about state action. In fact, in ¶ 10, Key expressly describes Regent as a "private college." Clearly neither Regent nor Robertson is a state actor (Regent is a religious entity, so it being a state actor would be troubling), so it is not subject to constitutional restrictions.

"Third, Key attempts a claim under the Higher Education Act fails because the provision under which he sues cannot be enforced through a private right of action. Section 1011a reflects an effort by Congress to get private universities to conduct themselves in accordance with the First Amendment (and as public universities must) in punishing students for protected on-campus expression and assembly. But I doubt this section is enforceable by private lawsuit. The provision explicitly describes itself as reflecting "the sense of Congress" that students at private universities should not be sanctioned for protected speech; that is not the type of rights-creating language the Court looks for in deciding whether to find an implied right of action. A Westlaw search in the ALLFEDS database found no cases even mentioning § 1011a. That should be a pretty good hint that this provision does not provide a basis for a private civil action.

"Interestingly, Key's best argument may be that Regent is acting in violation of its ABA-imposed obligations to comport its rules to ordinary First Amendment standards, in terms of punishing students. So he might be better served by making arguments to the ABA the next time Regent is up for re-accredidation. But he is not likely to get very far with this lawsuit."

You can find the original post HERE.

NOTE: If you care to comment on this post, please try to keep the beliefs and politics of Pat Robertson and Regent University out of it. I know that there are divergent opinions about Robertson with the regular readers.