Thursday, April 07, 2016

O'Brien v. Welty (9th Cir. - April 7, 2016)

Judge Fletcher says something in today's opinion that both matters to me personally as well as, in my view, is spot on.  He says (in a case that squarely raises the issue):

"Professors at work in their personal offices do not generally expect to be confronted without warning by a student asking hostile questions and videotaping. If the uninvited student refuses to cease hostile questioning and refuses to leave a professor’s personal office after being requested to do so, as O’Brien admits occurred here, the professor may reasonably become concerned for his or her safety. O’Brien’s behavior as described in the FAC could be considered 'harassment' or 'intimidation' and threatening under an objective reasonableness standard. It was thus permissible for Fresno State to impose discipline on O’Brien for this conduct under its reasonable and viewpoint-neutral regulation."

Yes.  Definitely.  If you come to my office and start with hostile questions and videotape, and don't leave my office when I ask you to, that's harassing.  (Indeed, regardless of what you say, your conduct is designed to be harassing, not that your subjective motivation is determinative.)

You can't do that to an ex-significant other.  You can't do it to me either.  It constitutes harassment.  (And Judge Fletcher, a former law professor, has pretty good personal knowledge of what is and is not reasonably expected in such a professional setting.  The conduct here crossed the line.)

So Judge Fletcher holds that the discipline imposed on this student was potentially proper, pursuant to a valid regulation.

But he also holds that the student -- a prominent conservative on campus -- had made out at least a "plausible" (at the pleading stage) claim for retaliation.  So reverses the district court's dismissal of his lawsuit on that ground.

I get it.  Judge Fletcher identifies a lot of facts that suggest that plaintiff was not a popular figure on campus, and, taken one way, one might perhaps view those facts as indicating that the reason that the plaintiff might have been charged with harassment was because of his political views.  Judge Fletcher makes a pretty decent case in this regard.

But I want to add one thing to what Judge Fletcher says.  And it somewhat cuts back, I think, on his conclusion, as well as being definitely worth mention.

I'm sure that the faculty members at issue here didn't like the plaintiff, in part -- perhaps in large part -- because of his political views.  The guy was clearly an aggressive, in your face dude in all aspects of the underlying political scrum on campus, and that surely rubbed some people the wrong way.

But the fact that the faculty members didn't like the guy doesn't necessarily mean that they engaged in retaliation because of these particular political views.  In my view, there's some extremely meaningful overlap in cases like this between the political views -- or the strength with which they're held and/or displayed -- and the entirely legitimate reasons why the conduct of a particular person may cross the line and lead to a person reasonably feeling threatened.

Let me get at this point with an easy example.  If an average, run-of-the mill student of mine comes into my office and starts aggressively questioning me, and turning on a camera, and won't leave, it's definitely a pain in the butt.  I'm not going to like it.  I'm going to think the guy's way overboard.  In pretty much every single case.

But if it's just an average guy, it's quite possible that I won't feel threatened by this particular event.  I won't think it's necessarily a big deal, or -- even if it is -- maybe not a big enough deal to refer the guy to be disciplined.  I might think that I've just gotten the student abnormally worked up, and that he'll eventually calm down, and that I can defuse the situation.

But if the guy is instead a guy with incredibly strongly held political beliefs (on either side, I might add), and if it's a guy who's known throughout the campus someone who seems to feel these beliefs so deeply that he regularly "goes off the deep end" -- i.e., behaves aggressively and/or outside of the normal constraints that usually bind people in these types of disputes -- I gotta tell you, I'm going to have a lot more fear when that guy's in my office.  I'm going to likely figure that the normal, one-off student with no history of deeply-felt aggression is going to mellow out.  But for the other guy I may well have a lot greater fear that this thing may end up with him pulling out a gun and killing me.  Not "because" of his political beliefs.  But because of the strength of them, how he elects to display them (outside of social norms), and how they appear to historically dominate his conduct.  That's the guy I'm worried about.  That's the guy who's conduct is more likely to constitute harassment, in my book, as well the the guy I'm more likely to (legitimately) refer for discipline.

That's not, in my view, retaliation.  I'm not doing it because of his political beliefs.  I'm doing it because I'm scared.  Just like you -- or any other observer -- would be in similar circumstances.

To me, the availability of that alternative explanation cuts back somewhat on the plausibility of the evidence that might otherwise be viewed as proof that this guy was selected for discipline because he was right-of-center.  Yeah, he was right of center, and yeah, people (including the defendants) did not like that.  But he was disciplined because -- in colloquial terms -- he was a nut; moreover, a nut who engaged in conduct that constituted harassment and that someone could reasonably fear.

Now, I concede, there may be a fine line between illegitimate retaliation based on the political beliefs of a student and legitimate responses based in part in the way those beliefs have been expressed (that may in turn legitimately engender fear when the student, as here, crosses the line into harassment).  I nonetheless still think it's a meaningful one.  So I'd have mentioned it in the opinion.  If only because it may well be relevant at the summary judgment stage, and also because this legitimate explanation for the evidence identified by plaintiff may also be relevant at the "plausibility" (pleading) stage as well.

I'll shorthand all of this with the following:

Don't come into my office unannounced, start verbally attacking me with a videotape, and refuse to leave when I ask.  And especially don't do so if you're a nutjob (and especially if I know you're a nutjob).

Because that's definitely not okay.