Abbott v. Pastides

• Decision Date: 11 July 2017
• Docket Number: Civil Action No.: 3:16–cv–538–MBS
• Citation: 263 F.Supp.3d 565
• Court: U.S. District Court — District of South Carolina
• Parties: Ross ABBOTT, College Libertarians at the University of South Carolina, and Young Americans for Liberty at the University of South Carolina, Plaintiffs, v. Harris PASTIDES, Dennis Pruitt, Bobby Gist, and Carl Wells, Defendants.

263 F.Supp.3d 565

Ross ABBOTT, College Libertarians at the University of South Carolina, and Young Americans for Liberty at the University of South Carolina, Plaintiffs,

v.Harris PASTIDES, Dennis Pruitt, Bobby Gist, and Carl Wells, Defendants.

Civil Action No.: 3:16–cv–538–MBS

United States District Court, D. South Carolina, Columbia Division.

Signed July 11, 2017

Edward T. Fenno, Fenno Law Firm, Charleston, SC, Lisa Beth Zycherman, Robert Corn–Revere, Ronald Gary London, Davis Wright and Tremaine, Washington, DC, for Plaintiffs.

Carl Frederick Muller, Carl Muller Law, Greenville, SC, Kenneth Paul Woodington, William Henry Davidson, II, Davidson Morrison and Lindemann, Columbia, SC, for Defendants.

ORDER AND OPINION

Margaret B. Seymour, Senior United States District Judge

Plaintiffs Ross Abbott ("Abbott"), College Libertarians at the University of South Carolina ("Libertarians"), and Young Americans for Liberty at the University of South Carolina ("YAL")(together "Plaintiffs") bring this civil rights action pursuant 42 U.S.C. § 1983 against Defendants Harris Pastides, Dennis Pruitt, Bobby Gist ("Gist"), and Carl Wells ("Wells") (together "Defendants"), alleging that Defendants violated their rights under the First Amendment. This matter comes before the court on Defendants' two motions for summary judgment and Plaintiffs' cross-motion for partial summary judgment.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs planned a Free Speech Event at the University of South Carolina ("USC") to draw attention to threats to free expression on college campuses. ECF No. 1 at 5. Plaintiffs planned "to create visual displays and handouts depicting censorship controversies that have occurred at USC and other universities throughout the country." Id. Prior to the event, Abbott met with Director of Campus Life and the Russell House University Union, Kim McMahon. Id. Abbott provided Ms. McMahon a synopsis of the planned event, including details describing the types of visuals that Plaintiffs intended to display. Id. at 6. Abbott subsequently obtained the proper space and facilities reservation to hold the event in front of the Russell House Union Building, a building located within USC's "free speech zone." Id.¹

The Free Speech Event took place on November 23, 2015, as planned. Plaintiffs "displayed posters and hand-outs referencing censorship incidents at other universities." Id. at 6. Some of the incidents highlighted included an incident where a student was threatened punishment because of distributing copies of the United States Constitution on Constitution Day outside of a university's designated areas for free speech, and an incident where a university's policies failed to recognize a pro-choice group as a student organization. Id. at 6–7. Further, the word "wet back" and a picture of a swastika were among the visual displays. Id. Contextual background for all of the incidents displayed were provided by Plaintiffs.

During the event, members of the campus community called USC officials to complain about the displays. These complaints were forwarded to Ms. McMahon by email. ECF No. 27–3 at 2. One particular email from the Director of the Office of Multicultural Student Affairs stated, "I am getting calls from everyone from faculty to the Columbia Jewish Federation concerning the swastika on Greene [S]treet." Id. Ms. McMahon responded to the email noting, "This is free speech and they are in a free speech area and if they are being respectful and trying to help learn and create dialogue then I am not sure how to help those that are uncomfortable about it." Id. Ms. McMahon responded again in a subsequent email wherein she continued to describe the purpose of the event, writing, "Discomfort is not surprising but they are hosting a free speech education event with a variety of situations that have been cited as examples of violation of free speech on other campuses. As I am not there I can't provide context and if group is doing what their event said it would." ECF No. 27–4 at 2.

On November 24, 2015, Wells, Assistant Director of the Office of Equal Opportunity Programs ("EOP"), sent a letter to Abbott stating that three students filed Formal Complaints of Discrimination. ECF No. 1–14 at 2. One student complained of Plaintiffs' behavior at the event, including, "engaging rudely with USC students, saying sexist and racist statements." ECF No. 1–14 at 8. In reference to Plaintiffs' display of a swastika at the event, another student complained that a friend "was violently triggered by seeing the symbol, and now feels unsafe on campus." Id. at 11.

The letter sent to Abbott indicated that a "Notice of Charge" and copies of the official student complaints were enclosed.

Id.² Abbott was instructed to contact the EOP office within five days to "arrange an appointment to fully discuss the charges as alleged." Id. Abbott was directed not to contact any of the complainants, and not to discuss the issue with other members of the campus community. Id. The letter further provided:

With respect to a complaint that is filed with this office we shall as a matter of policy attempt to resolve the complaint through mutually agreeable mediation. Should we be unable to mediate a complaint we shall move to investigate the complaint and we shall upon completion of our investigation, issue to all parties a copy of our findings and recommendations which we shall make to the Provost and President of the University.

Id.

On November 24, 2015, Abbott called Wells to discuss the letter. ECF No. 1 at 10. Abbott states that during his conversation with Wells, "Mr. Wells confirmed that an investigation into the complaints would comply with University policy EOP 1.01, which details Equal Opportunity Complaint procedures." ECF No. 57–1 at 5.

On December 8, 2015, Wells met with Abbott, who was joined by Michael Kriete ("Kriete"), the President of YAL. ECF No. 1 at 13. The meeting lasted forty-five minutes and was recorded by Abbott. Id. At the beginning of the meeting, Abbott provided Wells with a letter setting forth his defense to the Free Speech Event. ECF No. 27–5 at 7. The letter also listed actions USC "would need to take to prevent its policies from chilling the exercise of constitutionally protected speech." ECF No. 1 at 14. Abbott explained the purpose of the free speech event and expressed his concerns with the meeting. ECF No. 27–5. Wells confirmed that the meeting was a pre-complaint/pre-investigation remedy to obtain more information concerning the details of the event in response to the student complaints. ECF No. 27–5 at 3.

On December 23, 2015, Wells sent a letter to Abbott notifying Abbott that the EOP Office "will not move any further in regard to this matter. The Office of Equal Opportunity Programs has found no cause for investigating this matter." ECF No. 27–6 at 2. On February 23, 2016, Plaintiffs brought the underlying action. ECF No. 1. First, Plaintiffs raise an "as-applied" challenge, asserting that when Defendants required Abbott to attend a meeting to address student complaints, Defendants unconstitutionally applied USC policies to Plaintiffs in a way that chilled Plaintiffs' speech. Next, Plaintiffs allege USC's "policies and actions create a hostile atmosphere for free expression on campus, chilling the speech of other registered student organizations, as well as students, who are not before the court." ECF No. 1 at 17.

Plaintiffs challenge USC's Student Non–Discrimination and Non–Harassment Policy, STAF 6.24; and the Carolinian Creed as unconstitutional, claiming that the terms of both are broad and undefined and "vest University officials with unbridled discretion in their ability to review and restrict student speech." Id. at 21. Plaintiffs argue that the types of speech prohibited in STAF 6.24– " ‘unwelcome’ and ‘inappropriate’ speech, including ‘objectionable epithets, demeaning depictions,’ ‘unwelcome and inappropriate letters, telephone calls, electronic mail, or other communication,’ ‘repeated inappropriate personal comments,’ speech that employs ‘sexual innuendos and other sexually suggestive or provocative behavior,’ and even ‘suggestive or insulting gestures or sounds’ "—is unconstitutionally vague. Id.

STAF 6.24's definitions of "harassment" and "sexual harassment" state, in pertinent part:

Harassment is a specific type of illegal discrimination. It includes conduct (oral, written, graphic, or physical) which is directed against any student or group of students because of or based upon one or more of the characteristics articulated in Section II above, that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual or group to participate in or benefit from the programs, services, and activities provided by the University.

Such harmful conduct may include, but is not limited to, objectionable epithets, demeaning depictions or treatment, and threatened or actual abuse or harm. Harassment does not include the use of materials by students or discussions involving students related to any characteristic articulated in Section II for academic purposes appropriate to the academic context.

ECF No. 1–16 at 3.

Sexual harassment is a specific type of discrimination which is defined as unwelcome conduct of a sexual nature that is sufficiently severe or pervasive that it adversely affects a student's or student group's ability to participate in or benefit from the programs and services provided by the University. Examples of conduct that may constitute sexual harassment in violation of this policy include, but are not limited to, the following types of unwelcome and harmful behavior:

a. Physical Conduct

i. Unnecessary or unwanted touching, patting, massaging, etc.

ii. Impeding or blocking movements

iii. Acts of sexual violence

iv. Other unwanted conduct of a physical nature

b. Non–Verbal Conduct

i. Suggestive or insulting gestures or sounds

c. Verbal conduct

i. Direct propositions of a sexual nature

ii.

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