Higher Education , Law & Principles
Ray Carter | February 9, 2024
Court order protects students from OSU retaliation
In 2023, Oklahoma State University (OSU) was sued by Speech First over policies the civil-rights group said violated students’ constitutional rights. Speech First represented three OSU students in the case, who were not identified by name.
OSU argued in court that the three students should be forced to reveal their identities if they challenge the university’s policies, a tactic critics noted would force students to subject themselves to potential retaliation.
Although OSU prevailed in a lower court, this week the U.S. Court of Appeals for the Tenth Circuit sided with the students and overturned the lower court ruling.
“Longstanding and well-established doctrine in the federal courts establishes that anonymous persons may have standing to bring claims,” stated the order.
The decision allows the case to proceed without the three students being publicly identified by name.
Speech First sued in 2023, saying the university’s harassment, computer, and bias-incidents policies violate students’ First and Fourteenth Amendment rights.
The complaint said OSU had “created a series of rules and regulations that deter, suppress, and punish speech about the political and social issues of the day. These restrictions disregard decades of precedent.”
The complaint noted OSU’s “harassment” policy disciplines students who engage in speech deemed to be intimidating or verbal abuse that “threatens” another student’s mental health, but the policy “gives students no details about what the University considers ‘abusive’ or ‘intimidating’ and covers a wide swath of protected speech.”
The complaint said OSU’s computer policy forbids students from using their campus email accounts to transmit political campaign messages, even though the university allows students to send emails on other political issues.
Speech First noted OSU’s bias-incidents policy defines “bias” broadly and students can be disciplined for alleged incidents that “occur on or off campus, including on social media.” Speech First said the “actions” targeted by the bias policy “encompass pure speech. Students can be reported for, among other things, a ‘Comment in Class,’ a ‘Comment in Writing,’ ‘Incorrect name or pronoun usage,’ or an ‘Offensive Picture or Image.’ Bias incidents can occur on or off campus, including on social media or other digital platforms.” Under the policy, complaints about bias can also be submitted anonymously.”
The three students represented by Speech First all identified as political conservatives.
Speech First noted that OSU students can be reported for alleged incidents that occur on or off campus, including “incorrect name or pronoun usage.”
After a lower court ruled the lawsuit could not proceed without the students’ identities being made public, several national organizations representing a wide political spectrum weighed in, filing amicus briefs in support of preserving the anonymity of the OSU students and allowing the case to proceed.
If courts required Speech First to identify the individual students it represents, the Chamber of Commerce and American Bankers Association said that requirement “threatens to chill core First Amendment speech by exposing associations’ members—such as the businesses the Chamber represents—to government harassment or retaliation.”
The Young America’s Foundation (YAF) and the Manhattan Institute noted that OSU was following in the steps of the segregationist state government of Alabama in the 1950s, which tried to force the NAACP to disclose the names of its members when the group was working to overturn racial-segregation laws.
“Government officials understood that many would stop supporting the NAACP if it meant risking reprisal from segregationists,” the Young America’s Foundation (YAF) and Manhattan Institute brief stated. “They were right; because of compelled disclosure, the NAACP saw a 50% decline in southern-state memberships between 1955 and 1957.”
Ultimately, the U.S. Supreme Court sided with the NAACP in that dispute, ruling in 1958 in NAACP v. Alabama that the organization could keep its members’ identities secret.
In another brief, the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of Oklahoma similarly wrote, “The Supreme Court has often considered claims brought by associations on behalf of anonymous or pseudonymous members, notwithstanding the government’s attempts to argue at earlier stages that the unnamed members could not suffice to establish the organization’s associational standing.”
A brief filed by the Independent Women’s Law Center noted that individuals who are “willing to speak out on controversial topics are regularly subject to harassment, vandalism, threats of violence, and actual physical assault.”
OSU objected to acceptance of the amicus curiae briefs, calling them “burdensome to OSU, but even more burdensome on the Court,” and declaring them “redundant and repetitive” and “superfluous.”
In the U.S. Court of Appeals for the Tenth Circuit order allowing the case to proceed while preserving the anonymity of the three OSU students, the judges noted that in one of the nation’s most famous court rulings, the U.S. Supreme Court allowed the Roe v. Wade abortion case to be heard even though “Roe” was a pseudonym.
The order noted that OSU “has suggested no reason why the use of a pseudonym by the injured member of the organization filing suit should defeat standing when the injured member alone would have standing to bring the claim as an individual plaintiff under a pseudonym.”
The Tenth Circuit order concluded that a U.S. Supreme Court case cited by OSU did not compel disclosure of anonymous plaintiffs’ identities.
And the Tenth Circuit order waved off other circuit court decisions cited by OSU officials to bolster their argument against allowing students to sue the university anonymously, noting that “in none of them is there any mention of someone being anonymous or using a pseudonym, none of the opinions addressed whether the use of a pseudonym barred standing, and the plaintiffs were denied standing because none of them made the requisite showing of injury by a member, pseudonymous or not.”
[For more stories about higher education in Oklahoma, visit AimHigherOK.com.]
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.