No Liability for University Officials Who Reasonably Detain and Question Student
May 14, 2004
The President and two other officials of Portland State University were personally sued by Desyllas, the editor of the student newspaper, in Desyllas v. Bernstein, 351 F.3d 934 (9th Cir. 2003). Desyllas alleged violations of 42 U.S.C. §1983, claiming that his First and Fourth Amendment Rights to the United States Constitution were violated. Specifically, he alleged violation of his rights to free speech and freedom of the press; and unlawful detention and seizure of property. The material facts were undisputed.
It began when Desyllas found a box of confidential student records outside his campus newspaper office. The box contained a note: “you’ll know what to do.” Desyllas discovered that the box contained confidential student information, including names, mental health records, medical records and various disciplinary records. He took the box and locked it in a cabinet in the student newspaper office. More than three months later, Desyllas contacted the President of the University, told him that he had the student records, and that he intended to issue a press release about them. Desyllas did not say he was working on a story for the paper nor did he ask to interview the President.
The President was concerned that the disclosure of the student records would violate the University’s obligations under the Family Education Rights and Privacy Act of 1974, which provides that federal funding may be withheld when an educational institution has a policy or practice of permitting the release of student records without the written consent of the students or their parents. Oregon has a similar state law protecting the confidentiality of student records. Fearing that the release of the confidential information would subject the University to potential liability under federal and state laws, the President sought legal counsel.
Among several options presented by counsel, the President elected to confiscate the records from the student newspaper office, which was located on state-owned university property. The President directed two University officials, the Special Assistant to the President and the Public Safety Director, to go to the student office and retrieve the student files.
Upon arriving at the newspaper office, the University officials noted that the door was locked; so, they placed a “clam lock” device over the doorknob, preventing access to the office. Shortly thereafter, they found the editor upstairs in the student government office. They asked to speak with him; he agreed, but asked to remain in the student government office where other students were present. The officials agreed. The officials asked for the return of the student records, but Desyllas lied and said they were not in the newspaper office and he could not retrieve them. He also said he realized that the records were University property and that he intended to return them, but he first needed them to finish a story he was writing. The officials told the student he could be arrested for possession of stolen property and that the police could obtain a search warrant to retrieve the records.
Desyllas asked to call his advisor and a lawyer. One University official walked with Desyllas to the newspaper office, removed the clam lock device, and permitted him to enter the office and make phone calls. Unable to reach his advisor, Desyllas asked if he could wait a while to try calling again and to also call another lawyer. The officials agreed, saying, “we can stay here all night.” Shortly thereafter, following a smoke break, Desyllas turned over the records.
Later, DeSyllas sued the President and the two University officials who retrieved the records. He argued that “detaining” him for questioning and seizing the box of student records from inside the newspaper office violated his Fourth Amendment right against unlawful detention and seizure. He also argued that locking him out of the newspaper office and refusing to permit posting of notices (about his lawsuit) without prior approval violated his First Amendment right to free press and free speech.
The officials defended the lawsuit on the basis of qualified immunity. Qualified immunity exists when government officials perform discretionary functions that do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” If these factors are present, the government employees may be immune from liability for civil damages.
The U.S. Court of Appeals for the Ninth Circuit first analyzed the Fourth Amendment claims. The court observed that mere questioning of the student did not itself constitute unlawful detainment. The student was never told he could not leave. Indeed, he was permitted to go to his office to make telephone calls, he went outdoors for smoke breaks and he never asked to leave, except to make the telephone calls and to take smoke breaks – all of which he was permitted to do. He was not physically touched or restrained. He was told about the possibility of a search warrant, but the court observed that a reasonable person would view that as a fall back option for the officials rather than a threat to the student. Thus, the court concluded, the editor was not unlawfully detained.
The court also balanced the University’s interest in detaining the student against the student’s interest in maintaining liberty and privacy. The University had a strong interest in recovering University property, which consisted of confidential student records; in seeking to avoid potential liability should the records be disclosed, potentially violating FERPA and related state law; and in enforcing the criminal statutes prohibiting theft. Given the balance of interests, the court further found that any “detention” was not unreasonable. Moreover, the court held that there was no seizure of property because Desyllas had voluntarily turned over the box.
Next, the court considered Desyllas’ First Amendment claim. Desyllas argued that the clam lock prevented him from investigating and publishing the news. He tried to argue that the University’s “bullying tactics” – of locking the office and questioning him – abridged his right to freedom of the press. The court, noting that the entire sequence of events lasted approximately 68 minutes, flatly rejected this claim as “totally devoid” of support. Further, the court observed that Desyllas, at all times, remained free to write a story about the University’s handling of the records (including during the three months he had possession of the records), but he had elected not to do so.
Next, Desyllas argued that the removal of flyers he posted on campus regarding his lawsuit violated his First Amendment right to free speech. University policy required pre-approval of flyers on University property and designated approved and unapproved areas for posting. Indeed, the government – in this case, a public institution – may limit expressive activity in nonpublic areas if it is reasonable and not based on the speaker’s viewpoint. Here, the University had removed all flyers from unapproved areas (e.g. walls, hallways), not only Desyllas’ flyers. Because the Court found the removal applied to all flyers, not just the lawsuit flyers, the action was viewpoint–neutral. Further, because the flyers were not posted on approved bulletin boards but were on unapproved walls and pillars, their removal was consistent with the University’s purpose of maintaining aesthetic beauty while permitting public discourse in public forums (e.g. on bulletin boards).
Thus, the court found no violations of constitutional rights and awarded summary judgment to the University and against the student.
Lessons learned here include that a university may question students about matters of interest so long as the questioning is done in a reasonable manner (e.g.,
no physical touching or restraint), for a reasonable duration, and under
reasonable conditions (e.g., permit breaks and phone calls). Further, regulation
of speech may exist in limited circumstances, such as where the regulation is in
nonpublic areas, consistent with valid policies and procedures, and be
content-neutral and viewpoint-neutral.
For more information, e-mail Cynthia Brennan at
cynthia.brennan@hklaw.com or call toll free, 1-888-688-8500.
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