O’Brien v. Welty

Summary

Neil O’Brien was a politically conservative student California State University, Fresno. He was an active critic of the University’s administration and the student body president, who was an undocumented immigrant. O’Brien maintained a website where he posted information about the student body president and criticism of Fresno State. In his complaint O’Brien alleged that his activities led the University to monitor his postings and block him from posting on the University’s Facebook pages.

In May of 2011, O’Brien read a poem that was published in La Voz de Aztlan, a student newspaper that was published by the Chicano and Latin American Studies Department. O’Brien was angered by the content of the poem which referred to the United States as “America the land robbed by the white savage,” “the land of the biggest genocide,” and “the land of the brute, the bully, the land of glorified killers, the eater of souls.” On May 11, O’Brien went to confront Dr. Vitor Torres, the faculty advisor for La Voz de Aztlan in his office. O’Brien alleged that while he was waiting in the hallway he heard another professor, Dr. Lopez, warn Torres that O’Brien was “stalking” the hallway and joke that the University should create “Wanted signs with pictures of [O’Brien’s] face on them . . . [to] warn of his potential presence.” O’Brien turned on his camera and then approached Torres’ office door. He asked Torres if he had approved of the poem, but Torres informed him that he did not want to speak and asked him to leave the office. Torres then called the campus police. O’Brien then went next door to Dr. Lopez’s office, who also refused to speak to him and called the campus police. O’Brien then left the building. Both professors and the Dean of the Social Sciences Department filed complaints with the Fresno State Campus Police.

On May 24, Carolyn Coon, the Assistant Dean of Student Affairs, contacted O’Brien and informed him that he was facing disciplinary charges as his confrontation with the professors constituted threatening behavior. O’Brien was required to participate in a judicial conference but could only bring a “non-attorney advisor.” At the conference, Dean Coon offered O’Brien a settlement in which he would admit to threatening Torres and Lopez and would agree to stay 100 feet away from the Chicano and Latin American Studies Department. O’Brien refused and, in August, Dean Coon informed O’Brien that he had been charged with violating a provision of the Student Code of Conduct that prohibited students from engaging in behavior that “threatens or endangers the health or safety of any person . . . including physical abuse, threats, intimidation, harassment or sexual harassment.” At the judicial hearing on September 13, 2011, O’Brien’s attorney was not allowed to attend, and O’Brien was informed that he would be unable to call a campus police officer to corroborate his story even though the officer was willing to testify. Additionally, the hearing officer refused to look at the videotape of the incident.

On September 30, 2011, Dr. Paul Oliaro, the Vice President for the Division of Student Affairs and Dean of Students, rendered a decision in which he found that Dr. Lopez and Dr. Torres could have perceived O’Brien’s behavior as threatening. Vice President Olario ordered that O’Brien be prohibited from coming within 100 feet of the Chicano and Latin American Studies Department, and that he be placed on disciplinary probation through the Spring of 2012. O’Brien was involved in two further incidents after the sanctions were imposed.

On November 14, 2012, O’Brien filed suit in the Superior Court of California, County of Fresno, against various University officials alleging violations of his First Amendment rights. The Defendants removed the case to Federal Court and O’Brien filed an amended complaint alleging various violations of § 1983 and § 1985.  The Defendants then filed a motion to dismiss, which the District Court for the Eastern District of California granted. On appeal, the Ninth Circuit Court of Appeals held that the Student Code of Conduct did not violate the First Amendment either facially or as applied, but found that O’Brien had alleged enough facts to state a claim for First Amendment retaliation. On December 1, 2016, the parties agreed to dismiss the case.