By Judge Jacqueline Becerra (S.D. Fla.).
I have written about the case a few times–seven students from a campus group called ICEBreakers silently revealed “ICE OFF FIU” t-shirts during an event in which the university president interviewed Alex Rodriguez (don’t ask). They were sanctioned under a university regulation prohibiting indoor protest activity. A university hearing imposed a reprimand and required students to submit “video reflections” about what they have learned about the regulations they were found to have violated.
The court held that Tinker applies on college campuses. It declared the reg invalid under Tinker because it could (and in this case did) allow for sanction of non-disruptive expressive activities. The injunction prohibits university officials from enforcing the reg against the seven students and ICEBreakers members (yay, non-universality). In FN 8, the court “stayed” the requirement of the video reflection imposed in the disciplinary hearing.
Quick thoughts.
• Tinker should not apply on college campuses or should apply in a much more speech-favorable way. The district court applies a singular standard, with no suggestion of variance for a university. The court notes it is a moot point because this reg fails the most basic version of Tinker, let alone something more speech-protective.
• I cannot shake the Younger problem here. The students are challenging a law that had been enforced in a state administrative proceeding for which judicial review is available. Younger never came up in the briefing or the opinion. The plaintiffs (and the court) frame this as enjoining prospective enforcement of this reg against these plaintiffs–a purely prospective remedy that does not seek to undo past punishment. That works if the goal is to allow ICEBreakers and these students to do this again in the future.
But the complaint sought to undo the past sanctions. FN 8 “stays” the previously imposed sanctions as a side effect of the injunction–because FIU cannot enforce the reg, the ongoing sanctions imposed in the disciplinary proceeding must be stopped.That does not work if we take Younger seriously. Labeling it a “stay” does not change the basic point–a federal court is interfering with a live state adjudicative proceeding that imposed a sanction for past conduct. Not that I want the students to lose a federal forum or to be forced into state proceedings. But no one has explained why ordinary Younger principles do not require that.