Tenth Circuit: Students free to encourage classmates to give honest evaluations

February 7, 2022

In a decision authored last week by Judge Harris Hartz, a three judge panel of the U.S. Court of Appeals for the Tenth Circuit strengthened students’ expressive rights, denying qualified immunity to an administrator who censored a student critical of a faculty member. 

The ruling in Thompson v. Ragland arose from the speech of Rowan Thompson, a student at Metropolitan State University of Denver, who encouraged classmates to leave “honest” reviews of Dr. Megan Lazorski on end-of-term evaluations. Thompson then received an email from MSU’s Associate Director of Student Conduct, Thomas Ragland, who informed her that she was “restricted from discussing Dr. Lazorski with any student in the CHE 1800 course or any of Dr. Lazorski’s classes.”

Thompson sued, believing that her First Amendment rights had been violated. She was right — and her willingness to stand up for her rights will help protect the freedom of speech for others.

The district court tossed the complaint, finding that Ragland was entitled to qualified immunity, a shield for government officials to avoid liability unless they’ve violated a clearly established legal right. Thompson appealed the ruling, citing decades of case law in arguing that her expressive rights were already clearly established when the institution issued its gag order. 

Administrator to student: knock it off with the emails

Thompson is afflicted by a condition that makes her eyes particularly sensitive to light. Because of this, she preferred to sit in the first three rows of the classroom where Lazorski’s lectures took place. On two occasions, Thompson arrived late to class and found that all of the seats in the first three rows were occupied. To avoid aggravating her condition, Thompson elected to sit on the floor. Lazorski was aware of Thompson’s condition, but preferred, not unreasonably, that Thompson sit in a seat. On the first occasion, Lazorski asked other students to move seats to allow Thompson a spot that was suitable for her. On the second occasion, Lazorski told Thompson that she could either choose a different seat or leave the classroom. Thompson elected to leave the classroom after this second dispute and ultimately dropped the course. 

“If we were to accept that rationale, there would be no First Amendment protection for criticism of government employees.”

Thompson requested mediation of her dispute with various MSU administrators and officials. This mediation took place on March 18, 2021, when Thompson was encouraged to share her frustrations via class-rating and evaluation forms. However, because she had dropped the class, Thompson no longer had access to these forms. This prompted Thompson to email her fellow students, encouraging them to fill out their class evaluations honestly. 

Thompson’s email read, in relevant part:

I have heard so many of you say how horrible a time you’re having in this class, that there are some bits that are ridiculous or downright unreasonable. You shouldn’t have to suffer through a class, especially one that is required, and this is not what college is supposed to be like. College is supposed to make us feel excited about our futures and finally learn what we are interested in, not ditch class because we know we won’t learn anything. You don’t need to keep your complaints and troubles private; this is what the evaluations are for. They’re online; the link to fill them out appears when you log into Blackboard, they take only a couple of minutes, are anonymous, and the more detail is said the better. Every issue you’ve had, every complaint? This is when the faculty and university is listening and wants to hear them. Students, including myself, who have dropped the class won’t be able to fill out an evaluation- our voices cannot be heard unless we speak to the deans directly, but I know for a fact that many are afraid to speak face-to-face.

Please, take the few minutes to review this chemistry class and be honest- make the faculty listen to you so that this class can change for the better. If not for yourself, than for those who have had to drop the class, feeling worthless and stupid, or for students who will have to take this class after you.”

The Tenth Circuit rejected the defendants’ argument that Thompson’s behavior rose to the level of disruption. Instead, the court found that there was a plausible argument that Thompson wasn’t being penalized for sitting on the floor, but for sending the email:

[Ragland] relies in part on the disruption caused to the two classes Thompson attended when she sat on the floor. Those two classes were in early February 2019. Ragland’s letter to Thompson was in late April. In the interim (sometime after the mediation on March 18) Thompson sent her email to fellow students. A reasonable factfinder could readily determine that the discipline was imposed on Thompson because of the email, not just because of the two classroom incidents that caused minimal disruption and had apparently been resolved by Thompson’s dropping the class.

The Tenth Circuit further pointed out the consequences of the university’s attempt to characterize the email as disruptive because it might, somewhere down the line, cause a disruption: 

What Ragland argues in his appellate brief is remarkable. He claims that Thompson’s ‘efforts to encourage other students to give negative evaluations would disrupt Dr. Lazorski’s career and her relationship with her students, as well as [MSU’s] efforts in employing faculty to conduct the class.’ . . . If we were to accept that rationale, there would be no First Amendment protection for criticism of government employees.

Tenth Circuit to administrator: knock it off with the censorship

The court had no problem reaching the conclusion that the defendants were on sufficient notice that the restrictions defendants placed on Thompson violated the First Amendment.

Prefacing its conclusion, the Tenth Circuit panel:

Of course, not every detail of the First Amendment law governing student speech is (or ever will be) settled. The recent Mahanoy Area School District decision by the Supreme Court acknowledged as much when it refrained from setting forth a comprehensive rule stating when schools can regulate off-campus speech. See 141 S. Ct. at 2045. But a great deal is settled. And in any given case the unsettled contours of the law may be irrelevant.

The Tenth Circuit refers to this decision as “an easy one.” FIRE agrees. Long-established case law makes clear that Thompson was well within her expressive rights when emailing classmates and encouraging them to review a professor with honesty.

Schools:  Metropolitan State University of Denver