Sixteen students say Arizona State University President Michael Crow retaliated against their exercise of free speech when he suspended them after they participated in a protest against U.S. military aid to Israel in the Israel-Hamas War.
PHOENIX (CN) – A federal judge ordered Arizona State University to release the names of students who complained of anti-Semitism in connection with pro-Palestinian demonstrations on campus so they can be called as witnesses in a pending First Amendment lawsuit.
Despite objections that disclosure could subject those students to retaliation or discourage others from reporting their concerns about campus safety, US District Judge John J Tuchi agreed with a coalition of students suing the university for First Amendment retaliation that any student who complained by email to the university of anti-Semitism following an April 26, 2024 protest in which at least 70 student-protesters were arrested may be a material fact witness to the protest itself.
The identities of students disclosed to plaintiffs will be made public only if they are listed as trial witnesses.
Tuçi has denied the plaintiffs’ request for the identity of any student who filed complaints before the April 2024 protest.
“Those complaints may still be relevant to the state of mind of the defendant because of the effect they may have had,” Tuchi ruled from the bench Wednesday afternoon. “But the identity of the complainants in that circumstance is not important. Only the substance of the complaint and what effect it would have on the defendant and what he did with it.”
Sixteen ASU students say university president Michael Crow retaliated against their exercise of First Amendment free speech when he unilaterally suspended them from attending on their campus ARRESTS.
crow rejects the notion that their speech, which opposed United States military aid to Israel, was the reason they were suspended. Instead, Crow said the university simply enforced its anti-camping policy against the students, some of whom had pitched tents and who the university claims intended to stay the night.
One plaintiff was arrested at 8:30 a.m., 15 hours before the anti-camping policy went into effect.
In a Phoenix courtroom, university attorney Austin Yost said any student emails to faculty and staff expressing concerns about anti-Semitism and campus safety are completely irrelevant to the case.
“His motivations were not based on the complaints he was receiving from students,” Yost said of Crow’s decision to suspend students. “They were based on his observations and the observations of other faculty on campus.”
Those complaints were irrelevant to Crow’s decision to implement the anti-camp policy, Yost said. For that reason, Yost added, the veracity of the complaints contained in the leaked emails is equally irrelevant to Crow’s motivations.
Tuchi, an appointee of Barack Obama, also denied the plaintiffs’ request to disclose a personal, non-public email address of Michael Crow used in several email chains produced during discovery.
Because Crow personally oversees nonpublic email while the communications staff primarily oversees his public accounts, the plaintiffs argued that knowing which address a message was sent to or from is probative of whether Crow read or wrote a particular message.
Because the only redactions made to the leaked documents are to block a specific email address and not the content of the emails, Tuchi denied the plaintiffs’ request.
“With the representation and the fact that all other information has been disclosed and can be used to formulate plaintiffs’ primary case, the exact name of the email account is actually irrelevant for purposes of this discovery case,” Tuchi said. “It could be ‘steelersarenumberone’ or ‘ihatecarrottop’ and it wouldn’t matter either way.”
The Arizona Board of Regents, the governing board of the state’s public universities and a defendant in the suit, asked Tuchi to order the plaintiffs to comply with a disclosure request for all social media activity in the past three years related to pro-Palestinian protests, their arrests, disciplinary actions and their lawsuit. Yost argued that their online activity can reveal their intentions and measure their trustworthiness.
The plaintiffs’ attorney, Michael Yancy, argued that would violate their First Amendment privilege.
“This is a case of retaliation as to why the defendant acted the way he did,” Yancy said. “It does not open plaintiffs to a dig at their policy.”
Yost added that if their online activity shows they have participated in protests before, it would indicate their prior knowledge of ASU’s policies. Again, Yancy said prior knowledge is irrelevant to whether Crow engaged in viewpoint discrimination.
Finally, the Board of Regents required the plaintiffs to submit evidence from mental health professionals because they allege they have suffered and continue to suffer severe emotional distress and distress.
“By alleging emotional damages, these plaintiffs have called their own mental health into question,” Yost said. “Severe emotional distress is not regular emotional distress and anxiety is a diagnosis.”
Yancy argued that the plaintiffs’ claims still fall under the legal definition of “garden variety” emotional distress, and requiring them to produce two years of medical records would be overly invasive.
Tuchi said he will need more time to decide on the last two issues.
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