Students accuse university of violating 30-year-old court order
A University of Connecticut student made peace with the criminal justice system for violating a state law on “ridicule.” But Jarred Karal and his co-defendant Ryan Mucaj aren’t letting the university off the hook for its role in their prosecution.
The two students filed a First Amendment lawsuit this week against the taxpayer-funded university, President Thomas Katsouleas, student affairs staff and officials involved in their investigation.
It alleges UConn’s punishment of their protected speech also violated a 30-year-old “consent decree” from another First Amendment lawsuit, and seeks “findings of civil contempt” as a result.
University officials “have disregarded their obligations under the consent decree” for at least the past five years, and possibly since it was instituted in 1990, and “failed to take any reasonable precautions to ensure the order is followed or even that successive officials are made aware of its existence,” the students alleged.
That five-year mention is based on a 2015 letter to UConn from the ACLU’s state affiliate. It warned that the university’s discrimination and harassment policies contrast with “well settled” law protecting offensive speech, as well as the 1990 consent decree.
U.S. District Judge Michael Shea issued an injunction Thursday against the university’s scheduled Friday disciplinary hearing against the duo. It also prevents UConn from imposing any sanction against them before a Jan. 28 court hearing, where Shea will evaluate the students’ “alternative motion for preliminary injunction.”
The judge said the Karal and Mucaj will “suffer irreparable harm” if the hearing proceeds, both because of the potential loss of their housing and the “chilling effect on speech.” Shea cited an email from UConn’s general counsel promising that any sanctions will take effect even if the students appeal.
Karal and Mucaj were arrested in October for shouting a racial slur that was not directed at any specific person as they crossed a parking lot. They drunkenly started by yelling “penis” and then moved their way onto shouting the n-word. A student’s viral video only picked up the racial slur.
University police spent 11 days reviewing video and data surveillance in order to identify the two. When they were identified, the university found them guilty of “disruptive” behavior and pledged to kick them out of campus housing.
Legal scholars have been skeptical of the constitutionality of the Connecticut law under which the students were charged, whose penalties include up to 30 days in jail. Karal sought and was granted “accelerated rehabilitation” to resolve the criminal charges, while Mucaj’s criminal case is pending.
Eugene Volokh, a law professor and First Amendment expert at UCLA, wrote in Reason that the law was not even applied correctly, since it explicitly pertains to advertising. He told The College Fix in a phone call Tuesday that he thought Mucaj, who has not taken a plea in the prosecution, has a good chance at winning.
Officials were warned multiple times the proceeding was unlawful
UConn determined without basis that the use of “an offensive word” violated its policy on “disruptive behavior,” even though it didn’t target any person and was “unaccompanied by violence or threat of violence,” according to the suit.
By promising to remove them from campus housing, UConn deprived Karal and Mucaj of “their physical welfare” and contractual rights while “inhibiting their otherwise ready access to the school environment.”
The lawsuit emphasizes how much work UConn had to do even to discern what Karal and Mucaj were yelling in the video, which depicted “inebriated college students playing a word game involving various taboo or offensive words.”
Defendant Eleanor Daugherty, the dean of students, had to “highly amplify the recording” to conclude that the duo was yelling “nigger” as they crossed the parking lot. That “utterance is inaudible or indiscernible at normal volume” on the video, which a student had emailed Daugherty.
The dean reported the utterance to campus police because she found it “offensive” and knew police would investigate the “lawful conduct” of the students, given “her position in the school,” the suit claims.
Defendant Alexandra Kytan, assistant director of community standards and student conduct officer in the investigation, conducted the investigative hearings. They made clear that the students were facing scrutiny for the content of their speech, according to the suit.
Kytan confirmed to Mucaj that the student was under investigation “because of something I said,” even though Mucaj and his lawyer immediately told Kytan that the investigation was unlawful. The official consistently characterized the investigation as regarding “remarks directed towards race/ethnicity.”
In a subsequent “factfinding hearing,” Kytan’s colleague Kim Colon asked Karal to specify whether he said “nigga” or “nigger” in the parking lot. (Though the suit does not specify the significance of this question, it suggests Colon sought to determine whether Karal used the five-letter casual greeting common among African Americans or the six-letter racial slur.)
Karal, a nursing student, was also investigated by his professional school at UConn for violation of “professional standards,” though the Nursing School did not “substantively continue the investigation past that initial investigative interview,” the suit says.
At individual meetings with each student Nov. 19-20, Kytan, Colon and Associate Dean of Students Maureen Armstrong confirmed the disruptive-behavior findings. Kytan said Karal and Mucaj (left and right, below) would be removed from campus housing within 24 hours if they challenged her finding and an appeals panel upheld it, the suit claims.
At her meeting with Karal Nov. 20, Kytan confirmed she hadn’t consulted with his lawyer, at which point the student gave her a letter “demanding the proceedings immediately stop.” It warned her of her “personal and official obligations to honor” the 1990 consent decree in Wu v. University of Connecticut, and was later sent to the other defendants.
UConn agreed to remove prohibition on ‘personal slurs or epithets based on race’
The consent decree from Wu resolved litigation by an Asian-American student who had been punished for hanging a handmade poster on her dorm room door as a “joke.”
According to a contemporaneous New York Times report, Nina Wu’s poster listed categories of people who would be “shot on sight.” They included “bimbos,” which led to a complaint from two women, but other students said Wu included “homos,” which she denied.
“Disciplinary action was taken only after the official reviewing the complaint found that the poster also contained an anti-homosexual slur,” according to the Times. UConn expelled her from “all residential and dining halls” for violating a campus prohibition on “slurs or epithets” based on sexual orientation.
The n-word investigation, from start to finish, violated the Wu consent decree, according to Karal and Mucaj. UConn had agreed to remove the phrase “personal slurs or epithets based on race” from the harassment policy used against Wu, replacing it with the legal doctrine of the “face-to-face” use of “fighting words.”
It further agreed to not enforce “any other policy that interferes with the exercise of First Amendment rights” by students when “unaccompanied by violence or the imminent threat of violence.” Karal and Mucaj note that UConn agreed to pay Wu’s “reasonable attorney fees” as well.
Policy gives administrators ‘freewheeling and standardless discretion’ over speech
Karal and Mucaj said they were facing a Friday hearing where none of the officers is “expected to have particular expertise or training in First Amendment issues. (The suit was filed two days before Judge Shea’s order.)
UConn has “confirmed in writing” since November that it will “enforce the policy” against the students that they allege is unconstitutional and violates the 1990 consent order, with one exception: “a specific Court Order” halting the proceeding.
Karal and Mucaj will “suffer IMMINENT HARM and are likely to suffer further IMMINENT HARM” unless the court intervenes and halts UConn from imposing any sanction “whatsoever” on the plaintiffs, who are both in their final year of school.
The policy under which they were found responsible is unconstitutional both on its face and “as-applied” to the situation, the suit alleges, calling it a “de facto prior restraint” that gives administrators “freewheeling and standardless discretion” over student speech. Its “mere existence” impermissibly chills speech.
The named defendants “acted under color of state law” to deprive the students their constitutional rights and ignore their obligations under the 1990 consent decree, it says.
The Foundation for Individual Rights in Education noted Tuesday that it had warned UConn last fall that “any reasonable police officer would have known” the Connecticut ridicule law is unconstitutional. Not mentioned in that letter, but recognized in a subsequent FIRE blog post, was the university’s obligation to follow the 1990 consent decree.
Adam Steinbaugh, director of FIRE’s Individual Rights Defense Program, wrote then that the university couldn’t give him a copy of the consent decree.
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