Yesterday, the Supreme Court of the United States denied a petition for writ of certiorari by current and former students of the University of South Carolina, asking the high court to hear their appeal from a lower court decision dismissing their First Amendment lawsuit.
The case of Abbott v. Pastides — a FIRE-sponsored suit, and part of our Stand Up For Speech Litigation Project — challenged the university’s month-long investigation of student groups for holding a free speech event on campus after several students complained that the event was “offensive” and “triggering.”
The students’ petition to the Supreme Court gained support from a broad range of organizations. Two amicus briefs urged the Court to take up their appeal, including a coalition brief filed the ACLU of South Carolina, DKT Liberty Project, the Cato Institute, and Reason Foundation, as well as a brief filed by the First Amendment Clinics at Duke Law School and Arizona State University’s Sandra Day O’Connor College of Law.
However, with the Court’s refusal to hear the case, the high court leaves intact a disappointing August 2018 ruling of the U.S. Court of Appeals for the Fourth Circuit, which threw out the students’ claims alleging the university’s actions infringed on their free speech rights under the First Amendment and unlawfully chilled their expression.
The Fourth Circuit’s decision held that USC’s investigation did not violate the students’ First Amendment rights, and that they lacked standing to challenge the policy under which they were investigated. Taking a “no harm, no foul” approach, the court reasoned that the university’s investigation of the complaints was appropriate — even though the court acknowledged the probe did chill the student groups’ speech until the investigation was ultimately dropped — and that a student of “ordinary firmness” would not be deterred from holding similar events in the future.
Although disappointing and damaging to student free speech rights, the Fourth Circuit’s opinion by its own terms “is limited to the facts before [the court].” The panel acknowledged that the circuit has previously “recognized that policies that formally or informally suppress protected expression at public universities raise serious First Amendment concerns.”
“[W]hile we are mindful of universities’ obligations to address serious discrimination and harassment against their students,” the court continued, “we also are attentive to the dangers of stretching policies beyond their purpose to stifle debate, enforce dogma, or punish dissent.”
Against this backdrop, the court specifically drew the outer bounds of its decision around circumstances (as the panel interpreted the record) in which a university conducts a time-limited, non-intrusive inquiry involving no threat of sanction in the face of student complaints.
FIRE firmly believes that the Fourth Circuit got this one wrong, and that this decision is inconsistent with both its own precedent and the decisions of other courts. In the meantime, you may be sure that we will be vigilantly watching colleges and universities in the Fourth Circuit to make sure they respect the boundaries laid down by the Abbott v. Pastides court, and will hold the panel to its pledge that “the courthouse door remains open to the claims of students who experience cognizable restrictions on their right to free expression.”