EAST ST. LOUIS – Art therapist Maggie DeJong adequately pleaded that former chancellor Randall Pembrook of Southern Illinois University in Edwardsville and others violated her right of free speech, Chief U. S. District Judge Nancy Rosenstengel ruled on March 20.
Rosenstengel mostly denied the school’s motion to dismiss a complaint DeJong filed last year.
She found she could not at this stage grant immunity to Pembrook, equal opportunity director Jamie Ball, and art therapy program director Megan Robb.
| siue.edu
Pembrook, Ball, and Robb issued orders prohibiting contact between DeJong and three other students in the program.
They warned of disciplinary consequences if she violated the orders.
Rosenstengel wrote, “DeJong has plausibly pleaded that the orders were issued based on protected speech relating to her religious and political beliefs, and that the orders applied to her based on the content of the message she expressed in her posts and conversations.”
“DeJong clearly has the right, as enshrined in the First Amendment, to express her religious, political, and social views on her personal social media account and to engage in mutual conversations with fellow students regarding those opinions without fear of retaliation from school officials,” she added.
DeJong graduated with a master’s degree last May.
Rosenstengel didn’t specify the basis of the religious conflict, but DeJong’s complaint made it plain that other students objected to her devotion to Jesus Christ.
She introduced him into conversations and posts about vaccination, political ideology, race relations, and abortion.
A student complained to Robb who referred the student to a dean who sent the student to Ball.
The student signed a complaint and DeJong received three no contact orders on Feb. 10, 2022.
DeJong claims Pembrook authorized the orders, and Ball issued them.
The orders didn’t identify any violation of school policy or provide any basis other than stating that interactions between DeJong and the others would not be welcome or appropriate.
On Feb. 23, Alliance for Freedom sent a demand letter to the school and issued a press release.
On Feb. 28, the school rescinded the orders.
On the same date, DeJong received a message from a graduate of the program she had arranged to interview, requesting that she interview someone else.
On March 1, Robb held a community meeting where students complained about DeJong.
On March 3, Robb sent emails to everyone in the program thanking them for shedding light on their collective need to step into empowerment against oppression.
She promised to revise the program’s annual student review to remedy a "lack of clear policy or consequences to oppressive acts.”
On March 10, Ball notified DeJong that her conduct didn’t rise to the level of a policy violation and she closed the case.
Ball provided a copy of the complaint.
Robb sent a message to another program graduate stating, “I hope you can support her. She’s burning bridges.”
DeJong sued Pembrook, Ball, and Robb after she graduated.
Her counsel, Greggory Walters of Arizona, claimed they retaliated against her speech, discriminated against her viewpoint, and subjected her speech to prior restraint.
She claimed damages for anxiety, reputational harm, and future loss of employment.
She sought a declaration that the school’s policies violate the U.S. Constitution.
The defendants claimed she lacked standing to challenge policies because she no longer studied there and that in any event they qualified for immunity as government officers.
Rosenstengel agreed that DeJong lacked standing to challenge policies.
“There is nuance, however, regarding the declaratory relief sought regarding the no contact orders,” she wrote.
“A declaration that the no contact orders violated her First Amendment rights would affirm her entitlement to damages,” she added.
That brought her to an analysis of immunity.
She found it protects officials from liability as long as their conduct doesn’t violate clearly established rights of which a reasonable person would have known.
She found the dispositive inquiry is whether it would be clear to a reasonable official that their conduct was unlawful in the situation they confronted.
Rosenstengel found there must be settled authority that would cause a defendant to understand the illegality of their action.
She also found DeJong needed to allege she suffered a deprivation that would likely deter future activity and allege her activity was a motivating factor for a retaliatory deprivation.
“Taking all of Robb’s actions together, it is plausible that her actions intended to intimidate or humiliate DeJong,” she wrote.
Rosenstengel found Robb’s email on the community meeting could be construed as an accusation of misconduct propped up with a threat to change policies on such misconduct.
She found it could plausibly be read as an attempt to humiliate DeJong in front of her peers.
She also found DeJong plausibly pleaded the email and contact with alumni “could have deterred a person of ordinary firmness from continuing in protected activities.”
She found a reasonable inference that DeJong’s speech motivated Robb’s conduct.
She added that if Robb engaged in a campaign to tarnish DeJong’s reputation or threatened punishment by promising policy changes, she should have known she violated DeJong’s rights.
As for Pembrook and Ball, Rosenstengel found issuing three no contact orders in response to protected speech would likely deter a person of ordinary firmness.
Rosenstengel found if they retaliated for DeJong’s statements, they would have known they infringed on her First Amendment rights.
She added that Ball’s case closure memorandum and the original complaint support a notion that DeJong’s speech motivated Pembrook and Ball to issue the orders.
She found DeJong provided analysis that schools may not restrict speech that doesn’t substantially disrupt their activities, especially off campus speech on social media.
Next she ruled that DeJong didn’t adequately plead viewpoint discrimination against Robb but adequately pleaded it against Pembrook and Ball.
Rosenstengel found DeJong plausibly alleged her speech motivated them and Ball to issue the orders.
She found discriminating against speech because of its message is presumed unconstitutional.
She also found it would be clear to a reasonable university official that issuing orders to a student due to their viewpoint collides with the student’s First Amendment rights.
Rosenstengel then found DeJong adequately pleaded prior restraint, which she described as threatened penalties for future speech.
“Pembrook and Ball issued official orders to DeJong forbidding communication with a group of students, requiring that any necessary communication proceed through an official channel with approval and threatening punishment for violation of the orders including speech directed to the individuals subjected to the orders,” she wrote.
Walters, who filed DeJong’s complaint, withdrew in February and advised Rosenstengel he left Alliance for Freedom.
Matthew Hoffman of Virginia, Michael Cork of Indiana, and Tyson Langhofer of Arizona now represent DeJong.
Ian Cooper and Katherine Nash of Clayton, Missouri, represent Pembrook, Hall, and Robb.