DeJong v. Pembrook

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MAGGIE R. DEJONG,

Plaintiff,

v. Case No. 3:22-CV-01124-NJR

RANDALL PEMBROOK,

JAMIE BALL, and MEGAN A. ROBB,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion to Dismiss filed by Defendants Randall

Pembrook, Jamie Ball, and Megan A. Robb (“Defendants”). (Doc. 18). Plaintiff Maggie R.

DeJong filed a timely response, to which Defendants filed a timely reply. (Docs. 20; 21). For

the reasons set forth below, the motion is granted in part and denied in part.

DeJong brings this action pursuant to 42 U.S.C. § 1983 for violations of her First and

Fourteenth Amendment rights while she studied in the Master of Art Therapy Counseling

Program at Southern Illinois University Edwardsville (“SIUE”). (Doc. 1). She alleges that

Defendants, current and former employees at SIUE, subjected her to retaliation for protected

speech, to viewpoint and content discrimination, and to prior restraint of her protected

speech. (Id.). In light of these claims, DeJong sues each defendant in their individual capacities

and seeks declaratory relief as well as damages. (Id.).

Defendants move to dismiss DeJong’s Complaint for failure to comply with Rule 8

and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

(Doc. 18). Defendants argue that DeJong’s complaint is neither short nor plain, that DeJong

lacks standing to pursue declaratory relief, that DeJong cannot seek to invalidate school

policies in this individual capacity suit, and that, in any event, Defendants are entitled to

qualified immunity. (Doc. 19).

FACTUAL BACKGROUND

From August 2019 until her graduation in May 2022, DeJong earned a Master of Arts

in Art Therapy Counseling from SIUE, a public university organized under the laws of the

State of Illinois. (Doc. 1, ¶¶ 33, 34, 111). Only twelve accredited schools across the nation offer

a graduate degree in this field. (Id. at ¶ 51). Defendant Robb, an associate professor, directs

the graduate Art Therapy Counseling Program (“Program”). (Id. at ¶ 42). The Program is

relatively small, with only three professors including Robb, and approximately ten students

in each cohort. (Id. at ¶¶ 53, 54). Another student in the Program (“Reporting Student”) met

with Robb on two occasions, October 26 and November 19, 2021, to report discomfort with

many of DeJong’s statements and social media posts. (Doc. 1-20). The statements and posts

expressed views on vaccination mandates, political ideologies and groups, race relations in

America, the January 6th insurrection, abortion, and religion, among other issues. (Docs. 1-20;

1-21). Robb referred the Reporting Student to Dean Kevin Leonard, who then directed the

student to the Office of Equal Opportunity, Access and Title IX Coordination (“EOA”).

(Doc. 1-20). The Reporting Student subsequently filed an EOA complaint on February 2, 2022.

(Id.).

Eight days later, DeJong received three “no-contact orders” (“NCOs”) issued by

Defendant Ball, the Director of the EOA. (Doc. 1, ¶¶ 39, 110). Defendant Pembrook, the

Chancellor of SIUE at the time, apparently authorized the issuance of the NCOs. (Id. at ¶¶ 35,

125). One NCO prohibited DeJong and the Reporting Student from having any contact with

one another, and the other NCOs prohibited DeJong and two other students from having any

contact as well. (Docs. 1-7; 1-8; 1-9). The NCOs did not accuse DeJong of violating

any university policy, but threatened possible “disciplinary consequences” if any party

violated the orders. (Id.). The NCOs provided no factual basis other than “upon information

and belief that interactions between [DeJong] and [the other students] would not be

welcome or appropriate at this time.” (Id.). Initially, the NCOs expired at the end of

the spring 2022 semester, however, they were rescinded eighteen days later on February 28,

2022. (Id.; Doc. 1, ¶ 154; Doc. 1-12). Two SIUE policies, 3C6 and 3C7, governed the

NCOs. (Doc. 1, ¶ 128). According to DeJong’s complaint, Pembrook was responsible for the

enactment, amendment, and enforcement of these policies as Chancellor. (Id. at ¶¶ 37, 38).

Within the Program, the NCOs became common knowledge. (Id. at ¶ 204). During

class, students described feeling a tension in the Program. (Id. at ¶¶ 205-06). On February 23,

2022, DeJong’s counsel sent a demand letter to SIUE officials and issued a press release. (Id. at

¶¶ 153, 204). Five days later, the Daily Citizen published an article, including excerpts from

an interview with DeJong’s counsel, describing her situation and the NCOs. (Id. at ¶¶ 231-32;

Doc. 1-11). The article used her name. (Doc. 1-11).

On March 1, the Program held a community meeting on campus, where the topic of

the NCOs arose, and some students complained about DeJong’s statements and social media

posts. (Doc. 1, ¶¶ 216-20). Robb attended the meeting. (Id. at ¶ 221). She did not dispel any

allegations against DeJong. (Id. at ¶ 222). Robb, as a follow-up to the community meeting,

emailed the entire Program on March 3. (Id. at ¶¶ 238-39). In her email, Robb thanked the

Program for sharing at the community meeting stating, “[t]he meeting shed light onto our

collective need to step up and into empowerment around ensuring anti- oppression acts in

our community.” (Doc. 1-18). The email referenced but pointedly did not comment on the

“current investigation.” (Id.). Robb also promised a revision of the Program’s “annual student

review” to remediate a perceived lack of “clear policy or consequence to oppressive acts.”

(Id.). The email contained an excerpt from the SIUE student conduct policy, which listed

behavior considered misconduct that could be subject to discipline, and urged the Program

“to uphold our standards of inclusion and care[.]” (Id.).

Alumni of the Program became involved as well. On February 28, DeJong received a

message from a graduate of the Program, who worked at a local service provider where

DeJong interned the year prior. (Doc. 1, ¶¶ 212-13). DeJong had also interviewed this alumna

for an ethics class assignment. (Id.). In the message, the alumna requested that, if possible,

DeJong interview someone else for the assignment as they had been informed of DeJong’s

“harassment to [a] black colleague.” (Doc. 1-13). Robb later contacted another graduate of the

Program to ask if they had seen the press about DeJong. (Doc. 1, ¶ 234; Doc. 1-17). Robb

messaged, “I hope you can support her. She’s burning bridges[.]” (Doc. 1-17).

Ten days after the EOA rescinded the NCOs, on March 10, DeJong received an email

and case-closure memorandum from Ball. (Doc. 1, ¶ 156; Doc. 1-19). The email included the

original complaint filed concerning DeJong and other supporting materials. (Doc. 1, ¶ 157;

Docs. 1-19; 1-20; 1-21; 1-22). As explained in the memorandum, the EOA investigated

allegations of religious and racial harassment/discrimination, ultimately determining that

DeJong’s conduct did not rise to the level of any policy violation. (Doc. 1-19). The EOA noted

the temporal remoteness of the alleged conduct and the unwillingness of a “potential

complainant/primary witness” to participate. (Id.).

Later that month, on March 27, a student in the program drafted a collaborative

community letter regarding the Community Meeting and recent news articles. (Doc. 1-26).

The student invited other students, alumni, and faculty to sign the letter. (Id.). Eventually, the

SIUE student newspaper published the letter. (Doc. 1, ¶ 259; Docs. 1-28; 1-29). The letter did

not directly identify DeJong. (Doc. 1-28). The SIUE student newspaper also published an

article about the NCOs, which did identify DeJong as well as other students involved.

(Doc. 1-29).

DeJong graduated from the Program in May 2022. (Doc. 1, ¶ 33). Due to her

experiences in her last semester at SIUE, DeJong filed suit on May 31, 2022. (Doc. 1). DeJong

believes that Defendants acted unconstitutionally causing censorship of speech and

restriction of movement, along with anxiety, reputational harm, and future loss of

employment, among other injuries. (Id. at ¶¶ 265-71). She seeks damages and declaratory

relief from Defendants in their personal capacities. (Doc. 1).

LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests whether the

complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635,

637 (7th Cir. 2012). To survive a Rule 12(b)(6) motion, a plaintiff only needs to allege enough

facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007).

In deciding a motion to dismiss under Rule 12(b)(6), a court accepts as true all well-

pleaded facts in the complaint and draws all reasonable inferences in the plaintiff’s favor.

Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013). Taken together, the

factual allegations contained within a complaint must “raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations omitted).

DISCUSSION

Defendants move to dismiss DeJong’s complaint for several reasons. First, Defendants

argue that DeJong lacks standing to assert claims for declaratory relief, and any such claims

are moot. Defendants also contend that, in this individual capacity suit, DeJong cannot seek

to have SIUE policies declared unconstitutional. Next, Defendants assert that DeJong’s claims

are barred by qualified immunity. Lastly, Defendants stress that DeJong’s complaint violates

Federal Rule of Civil Procedure 8, as it is neither short nor plain.

I. Declaratory Relief

As an initial matter, DeJong sprinkles requests for declaratory relief throughout the

counts in her complaint. She seeks a declaration that Defendants violated her constitutional

rights, a declaration that the NCOs were unconstitutional, and a declaration that parts of SIUE’s

policies 3C6 and 3C7 are unconstitutional. Defendants argue that DeJong lacks standing to seek

such declaratory relief and that her requests have been mooted by her graduation from SIUE.

A. Standing and Mootness

Defendants highlight that, to establish standing, DeJong must show an injury in fact,

causation between the challenged conduct and her injury, and some likelihood that a

favorable decision would remedy her injury. Defendants also assert that for DeJong to obtain

declaratory relief, she must show that she is in immediate danger of sustaining some direct

injury or that she will again be subject to the alleged illegality. According to Defendants,

DeJong’s only injuries regarding the NCOs and the school policies occurred prior to her

graduation. Moreover, as the challenged SIUE policies only apply to university employees

and students, a declaration of their unconstitutionality would provide DeJong no remedy

and would serve only as an advisory opinion about the policies and their potential impact on

other non-party students or employees.

DeJong emphasizes that her requests for declaratory relief are paired with a request

for damages. She argues that declaratory relief may proceed as a prelude to a claim for

damages, citing to two Seventh Circuit opinions. (Doc. 20, p. 5); see Johnson v. Meriter Health

Services Employee Retirement Plan, 702 F.3d 364, 369 (7th Cir. 2012) (“[A] declaration is a

permissible prelude to a claim for damages, that is, to monetary relief for a concrete harm

already suffered.”); see also Crue v. Aiken, 370 F.3d 668, 677 (7th Cir. 2004) ( “When a claim for

injunctive relief is barred but a claim for damages remains, a declaratory judgment as a

predicate to a damages award can survive.”). This is the only argument DeJong offers in

opposition to Defendants’ motion to dismiss her declaratory relief requests.

“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies.’” N.J. by Jacob v. Sonnabend, 37 F.4th 412, 420 (7th Cir. 2022); U.S. CONST. art.

III, § 2. To meet Article III’s standing requirements, a plaintiff must demonstrate:

(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed by a favorable

decision.

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Moreover, “a plaintiff must

demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc., 528

U.S. at 185.

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).

Essentially, a case is moot if a court’s decision can no longer affect the rights of litigants in

the case before it. Sonnabend, 37 F.4th at 421. Ultimately, “[a] federal court has no authority to

give advisory opinions or decide questions that cannot affect the rights of the parties.” Id.

The first case passingly cited by DeJong is inapposite. In Johnson, the Court remarked

“a declaration is a permissible prelude to a claim for damages” in a specific context. Johnson,

702 F.3d at 369. In that case, class members included former or retired employees who sought

declaratory relief to increase their future entitlement to pension benefits and to reform the

pension plan which could render the plan more favorable to all participants. Id. The

consequences of a judicial order revising the retirement plan impacted the interests of the

members seeking such relief. Id. As such, a live case between the plan and the former

employees existed.

DeJong also cites Crue, where the plaintiffs sought declaratory relief that a recently

retracted university no-contact directive violated their First Amendment rights. 370 F.3d at

676-77. While the university retracted the directive foreclosing injunctive relief, the Court

permitted a declaratory judgment claim to proceed as a predicate to a damages award. Id. at 677.

The current students and faculty challenging the retracted directive sought a declaration that

the directive was unconstitutional, which allowed them to substantiate a claim for damages

for violation of their First Amendment rights. Id.

Here, declaratory relief related to the SIUE policies is overwhelmingly precluded by

the case law. When a plaintiff can no longer be subject to the enforcement of a policy, the

plaintiff lacks standing to challenge the legality of that policy, and for the same reason such

claim can be moot. For example, in Feit v. Ward, the Seventh Circuit held that a former

employee lacked standing to challenge the constitutionality of a Forest Service policy

prohibiting employees from participating in spearfishing protests. 886 F.2d 848, 856-57 (7th

Cir. 1989). The Feit Court reasoned that the plaintiff, as a former employee, could not seek

relief that would impact only current employees. Id. Declaratory relief ultimately provided

no benefit to the plaintiff. Id. The plaintiff argued he could be rehired by the department and

subjected to the challenged policy once again, but the Court found this possibility purely

speculative and not enough to create standing. Id. at 858. In another example, the Seventh

Circuit found that a former middle school student, who challenged his school’s dress code,

lacked standing and his case was moot, because he ascended to high school and the middle

school policy no longer applied to him. Sonnabend, 37 F.4th at 421; see also Stotts. v. Community

Unit School Dist. No. 1, 230 F.3d 989, 990-91 (7th Cir. 2000) (high school graduate could not

challenge high school basketball team’s appearance regulations).

The Court finds that DeJong lacks standing to challenge SIUE’s policies (3C6 and 3C7)

because she is a former student, and a favorable decision regarding these policies would not

remedy her alleged injuries. Since her graduation, DeJong is no longer subject to these

policies. Even if the Court declared the policies unconstitutional, she would receive no benefit

and such declaration would not impact her. Furthermore, there is no live issue regarding the

policies with respect to DeJong, and she lacks a legally cognizable interest in the outcome of

a determination of the constitutionality of the policies. Thus, not only does DeJong lack

standing to assert these claims, but these claims are moot as well.

There is nuance, however, regarding the declaratory relief sought regarding the

NCOs. The Crue case cited by DeJong is relevant to this form of declaratory relief. In Crue,

when university students and faculty members intended to contact prospective student

athletes about the problematic nature of the school’s mascot, the university chancellor issued

a directive instructing all community members to refrain from contacting any prospective

athlete without express authorization of the Director of Athletics. 370 F.3d at 676-77. The

chancellor retracted the directive and resigned. Id. Nevertheless, the court permitted

plaintiffs to proceed with their request for a declaratory judgment that the directive violated

their First Amendment rights, as a predicate to their damages claim. Id. at 677-78.

Here, Defendants rightfully point out that Crue involved current students and

employees, whereas DeJong is a former student. But the plaintiffs’ relationship with the

university did not impact the right to declaratory relief regarding the rescinded directive in

Crue. Even if the Crue plaintiffs were former employees or students, a declaratory judgment

that the directive violated their First Amendment rights would have brought the same relief

to the parties, regardless of the fact that their relationship with the university had terminated.

See also Penny Saver Publications, Inc. v. Village of Hazel Crest, 905 F.2d 150, 153-54 (7th Cir. 1990)

(ordinance amendment did not render controversy moot because a live controversy existed

as to whether the ordinance was unlawful by chilling plaintiff’s advertisers’ speech, thus

entitling the plaintiff to damages); cf. Brown v. Bartholomew Consolidated School Corp., 442 F.3d

588, 596 (7th Cir. 2006) (if a plaintiff seeks monetary damages alongside declaratory relief,

the case is not moot even if the underlying misconduct that caused the injury has ceased).

The same is true for DeJong—a declaration that the NCOs violated her First Amendment

rights would affirm her entitlement to damages.

For Pembrook and Ball, the issuance of the NCOs represents their only action that

possibly infringed DeJong’s constitutional rights. A declaration of the unconstitutionality of

the specific NCOs issued against DeJong predicates her damages claim against those two

defendants. Thus, the declaratory relief sought regarding the NCOs—not the policies behind

them—is permitted to proceed. All other claims seeking declaratory relief are dismissed.

B. Individual Capacity

Another reason hinders DeJong’s ability to receive a declaration that the SIUE policies

are unconstitutional: DeJong sues Defendants only in their individual capacities. The

available remedies differ for individual and official capacity suits. See Ameritech Corp. v.

McCann, 297 F.3d 582, 586 (7th Cir. 2002) (“lawsuit[s] against a state official in his or her

individual capacity . . . do not seek to conform the State’s conduct to federal law; rather, such

suits seek recovery from the defendant personally.”).

Defendants here, in their individual capacities, have no power to enforce any SIUE

policy. Only an official capacity suit, or perhaps a suit against a different defendant, could seek

judgment declaring the SIUE policies unconstitutional. See Feit, 886 F.2d at 858 (7th Cir. 1989)

(“[T]he equitable relief [requested]—a declaration that the policy is unconstitutional and an

injunction barring the defendants from implementing the policy in the future—can be

obtained only from the defendants in their official capacities, not as private individuals.”).

Thus, even if DeJong had proper standing and her claims were not moot, she could still not

attain such declaratory relief from Defendants in their individual capacities. Her claims for

declaratory relief regarding SIUE policies must be dismissed on this additional basis.

Specifically, Count Four must be dismissed in its entirety as it seeks only a declaration

that the SIUE policies are overbroad. Parts of Count Two (claiming that the SIUE policies

include a content-based restriction and empower officials to use unbridled discretion to

target protected speech), Count Three (alleging the policies threaten future speech), and

Count Five (seeking a declaration that the policies are void for vagueness) are also dismissed.

II. 12(b)(6) Motion to Dismiss and Qualified Immunity

DeJong claims that Robb, Pembrook, and Ball all violated her constitutional rights by

retaliating against and discriminating against the content and viewpoint of her protected

speech posted on social media, expressed in class, and communicated in various ways to

other students. She also alleges that Defendants Pembrook and Ball issued a prior restraint

on her future speech and violated her due process rights. On the other hand, Defendants

argue that DeJong has failed to state a claim upon which relief can be granted because

Defendants are entitled to qualified immunity on all counts.

A. Qualified Immunity Standard

The doctrine of qualified immunity protects government officials from liability for

civil damages as long as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known. Leiser v. Kloth, 933 F.3d

696, 701 (7th Cir. 2019); see Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether a right is clearly established, courts

consider whether the violative nature of the particular conduct is clearly established in light

of the specific context of the case. Leiser, 933 F.3d at 702. The relevant dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a reasonable

government official that his conduct was unlawful in the situation he confronted. Saucier v.

Katz, 533 U.S. 194, 202 (2001).

Although qualified immunity is an affirmative defense, once raised, the burden shifts

to the plaintiff to defeat it. Purvis v. Oest, 614 F.3d 713, 717 (7th Cir. 2010). In demonstrating

that the violated right was clearly established, “a plaintiff must show either a reasonably

analogous case that has both articulated the right at issue and applied it to a factual

circumstance similar to the one at hand or that the violation was so obvious that a reasonable

person necessarily would have recognized it as a violation of the law.” Howell v. Smith, 853

F.3d 892, 897 (7th Cir. 2017) (internal quotation marks omitted). In other words, while there

is no requirement the “very action in question” must have previously been held unlawful,

there must be settled authority that would cause a defendant to understand the illegality of

his action. Id; Lewis v. Downey, 581 F.3d 467, 478-79 (7th Cir. 2009).

Importantly, qualified immunity is an immunity from suit rather than a mere defense to

liability. Pearson, 555 U.S. at 231. The doctrine stems from a desire to ensure that any

insubstantial claim against a government official is resolved prior to discovery. Id. Accordingly,

the Supreme Court has emphasized the importance of resolving immunity questions at the

earliest possible stage in litigation. Id. at 232. But qualified immunity depends heavily on the

facts of a case, and “a complaint is generally not dismissed under Rule 12(b)(6) on qualified

immunity grounds.” Reed v. Palmer, 906 F.3d 540, 548 (7th Cir. 2018) (internal quotations

omitted).

B. Count One – Retaliation

Generally, “the First Amendment prohibits government officials from subjecting an

individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct.

1715, 1722 (2019) (internal quotations marks omitted). If adverse action is taken against the

individual based on that forbidden motive, and other non-retaliatory grounds are insufficient

to provoke the adverse consequences, the injured individual may generally seek relief

through a First Amendment claim. Id. To substantiate a claim for First Amendment

retaliation, DeJong must plausibly allege that (1) she engaged in activity protected by the

First Amendment, (2) she suffered a deprivation that would likely deter First Amendment

activity in the future, and (3) the First Amendment activity was “at least a motivating factor”

for the retaliatory deprivation. Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008).

The first inquiry is whether DeJong has properly pleaded a constitutional violation

against Defendants. As to the first element, it appears there is no dispute that DeJong engaged

in activity protected by the First Amendment by voicing her political and religious beliefs in

class, on social media, and through conversations with her fellow students. Moreover, there

is also no dispute that her discussion with the media regarding the no-contact orders and the

demand letter she sent to Pembrook constituted protected First Amendment activity. Moving

to the second and third elements, the Court will evaluate Robb separately from Pembrook

and Ball, as her conduct differs from that of the other two defendants. At this stage, all well-

pleaded facts and reasonable inferences are construed in favor of DeJong. The Court will also

consider, along with the allegations set forth in the complaint, all documents that are attached

to the complaint, referred to in the complaint, and central to the complaint. See Williamson v.

Curran, 714 F.3d 432, 436 (7th Cir. 2013).

i. Defendant Robb

The second prong of a First Amendment retaliation claim is subject to an objective test:

whether Defendants’ alleged conduct would likely deter a person of ordinary firmness from

continuing to engage in protected activity. Douglas v. Reeves, 964 F.3d 643, 646 (7th Cir. 2020).

DeJong alleges that Robb directed the Reporting Student to report DeJong to a Dean at SIUE.

On information and belief, DeJong alleges that Robb encouraged other art therapy students to

report DeJong as well. After reading the Daily Citizen article, Robb reached out to an alumnus

and presumed mentor to DeJong and messaged, “I hope you can support her. She’s burning

bridges[.]” Robb also sent an email to the Program as a follow-up to the community meeting

thanking the community for sharing honestly and committing to “anti-oppression” in their

learning environment. The email also housed a link to the student conduct policy and included

an excerpt of acts of misconduct that could subject a student to discipline. Robb further stated,

“We cannot comment on the current investigation; however, the art therapy program and SIUE

does [sic] not have a clear policy or consequence to oppressive acts. Therefore, we are revising

our annual student review…[b]y ensuring documentation and remediation for both students’

growing areas and misconduct whether in the classroom or outside.”

Robb points out, understandably, that her email to the Program is devoid of any

reference to DeJong. On the other hand, DeJong argues that, given the context and the small

size of the Program, even without naming DeJong directly, everyone knew the target of the

email, and Robb revealed that DeJong was under investigation and publicly accused her of

oppressive acts and misconduct.

DeJong cites to Bart v. Telford, 677 F.2d 622 (7th Cir. 1982), to argue that Robb’s

“campaign of petty harassment” is actionable under the First Amendment. The facts given in

Bart are minimal. In Bart, the plaintiff alleged that her supervisor “orchestrated a campaign

of petty harassments” designed as punishment, including “baseless reprimands,” an

admonishment for endorsing a mayoral candidate at a press conference, and ridicule for

bringing in a birthday cake for a coworker. Id. at 624-25. DeJong also points to Dishnow v.

School District of Rib Lake, 77 F.3d 194 (7th Cir. 1996), to argue that Robb’s false accusations

against DeJong levied in retaliation for her protected speech violated the First Amendment.

In Dishnow, a school district fired the plaintiff, a public high school guidance counselor, in

retaliation for writing articles and letters considered scandalous and critical of the district.

Id. at 196. The defendants publicly accused the plaintiff of fourteen specific acts of misconduct,

which were disseminated throughout the small community affecting the plaintiff’s ability to

find another job. Id. at 198.

Somewhat differently, here, Robb did not subject DeJong to any kind of reprimand,

nor is Robb a supervisor for DeJong, though Robb is the director the Program in which

DeJong participated. The allegations against Robb, especially viewed in isolation, seem

trivial. First, the allegations in the complaint and attached documentation show that Robb

directed the Reporting Student to have a conversation with Dean Kevin Leonard, who then

referred the Reporting Student to the EOA office. Robb, as the Program director, advising a

student of how to proceed with a potential complaint regarding another student is not the

same type of “reprimand” or “humiliation” discussed in Bart. DeJong also alleges that Robb

reached out to alumni to spread the narrative of DeJong “burning bridges.” In reality, Robb

reached out to a supposed mentor of DeJong, and the complaint omits a portion of the

attached message which stated, “I hope you can support her. She’s burning bridges” (emphasis

added). Lastly, the email sent to the Program, as a follow-up to the community meeting, does

not mention DeJong by name or reference any specific actions known to have been taken by

DeJong (like specific viewpoints or social media posts) as oppressive acts or misconduct,

unlike in Dishnow, where the defendants recounted fourteen specific acts damaging the

plaintiff’s reputation and leading to humiliation.

“Unconstitutional retaliation by a public official requires more than criticism or even

condemnation.” Novoselsky v. Brown, 822 F.3d 342, 356 (7th Cir. 2016). Importantly, the Court

must also take into consideration Robb’s own right to free speech in its analysis. See Hutchins

v. Clarke, 661 F.3d 947, 956 (7th Cir. 2011). Generally, retaliation is actionable when a public

official’s statements rise to the level of threat, coercion, intimidation that punishment,

sanction, or adverse regulatory action will immediately follow, or profound humiliation.

Novoselsky, 822 F.3d at 356-57. Public officials can face liability for retaliation by subjecting an

individual to embarrassment, humiliation, and emotional distress, but such cases are limited

by a high bar, usually only met in circumstances of the release of highly personal and

extremely humiliating details to the public. Id. at 356. In absence of such threat, coercion,

intimidation or profound humiliation, a public official’s speech does not adversely affect a

citizen’s First Amendment rights, even if defamatory. Hutchins, 661 F.3d at 956 (citing Owens

v. Ragland, 313 F. Supp. 2d 939, 949 (W.D. Wis. 2004) and Suarez Corp. Indus. v. McGraw, 202

F.3d 676, 687 (4th Cir. 2000)).

Even viewing the allegations in the light most favorable to DeJong, positioning Robb’s

actions as a campaign of petty harassments leading to public humiliation seems like an

aggrandizement. At this motion to dismiss stage, however, DeJong’s claims survive, if not

barely. Taking all of Robb’s actions together, it is plausible that her actions intended to

intimidate or humiliate DeJong. Robb reached out to at least one alumna, even though her

messages suggest concern rather than animus towards DeJong, which could demonstrate an

attempt to humiliate her by tarnishing her reputation or to intimidate her into silence. It may

also be a reasonable inference that Robb reached out to the other alumna who DeJong

previously interviewed, as that alumna stated that she had, “been informed of [DeJong’s]

harassment to [her] black colleague.” Perhaps Robb’s email concerning the community

meeting could be construed as a public announcement of an investigation into DeJong and

an accusation that DeJong committed oppressive acts or misconduct propped up with a

threat to change the Program policies to address such misconduct. This could plausibly be

read as an attempt to humiliate DeJong in front of her peers, which is amplified by the small

size of the Program and Robb’s role as director. Viewed in this light, DeJong has plausibly

pleaded that Robb’s whole-Program email and contact to Program alumni could have

deterred a person of ordinary firmness from continuing in protected activities.

The third element of DeJong’s retaliation claim can be more easily assessed. DeJong’s

allegation that her “protected speech was at least a motivating factor in Defendant Robb’s

decision to take these actions,” (Doc. 1, ¶ 279), is conclusory, and the Court need not consider

it. But the alleged facts lead to a reasonable inference that Robb’s statements and actions were,

at least in part, motivated by DeJong’s protected speech. For example, Robb’s email could

conceivably be read as condemning DeJong’s statements and social media posts as

oppressive while threatening that the conduct policy would be adjusted to account for such

speech. Further, Robb’s contact with one alumna specifically referenced the Daily Citizen

article that featured DeJong. Interviews with the media are also protected speech.

Considering these examples, it is a reasonable inference that DeJong’s protected speech

motivated Robb’s conduct.

Because DeJong has properly pleaded a constitutional violation, Robb can receive

qualified immunity only if her conduct was not clearly established as unlawful. In other

words, there must be settled authority that would cause Robb to understand the illegality of

her actions. An individual’s right against retaliation for protected speech under the First

Amendment is not a new constitutional principle. While the cases raised by DeJong are not

completely on point, as noted above, the general contours of this right are sufficiently clear.

DeJong clearly has the right, as enshrined in the First Amendment, to express her religious,

political, and social views on her personal social media account and to engage in mutual

conversations with fellow students regarding those opinions without fear of retaliation from

school officials. See Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021) (high school

violated student’s First Amendment rights by reprimanding her after posting vulgar and

critical comments to social media while off campus); cf. Nuxoll ex rel. Nuxoll v. Indian Prairie

School Dist. No. 204, 523 F.3d 668 (7th Cir. 2008) (high school could not prevent student from

wearing a shirt saying “Be Happy, Not Gay” as it was speculative that the shirt would

provoke harassment or poison the educational atmosphere); cf. Snyder v. Phelps, 562 U.S. 443,

461 (2011) (First Amendment protection extends to hurtful speech on public issues to ensure

that public debate remains unimpeded).

If Robb, motivated by DeJong’s statements and social media posts, did engage in a

campaign to tarnish DeJong’s reputation by reaching out to alumni and alerting the Program

that DeJong faced investigation for misconduct and oppressive acts, or threaten punishment

by promising to update the student conduct policy to include speech like DeJong’s, then Robb

should have known that these actions violated DeJong’s First Amendment rights. Thus, at

this stage, Robb is not entitled to qualified immunity on Count One. Of course, discovery

may shed more light on these issues, and qualified immunity may be appropriate later in this

litigation.

ii. Defendants Pembrook and Ball

DeJong alleges that Pembrook and Ball engaged in prohibited retaliation when they

issued the NCOs against her. Again, it is undisputed that DeJong engaged in protected

speech, the first element of her retaliation claim. The next element is whether she suffered a

deprivation that would likely deter First Amendment activity. This element is easily handled.

Construing all facts and inferences in favor of DeJong, issuing three official NCOs, in

response to protected speech, would likely deter a person of ordinary firmness from

continuing to engage in protected activity, especially in this situation as Ball copied campus

police on the NCOs, and DeJong faced disciplinary consequences for any NCO violation.

The last inquiry, whether the NCOs were issued in response to and in retaliation for

the protected speech, is not quite as straightforward. DeJong’s First Amendment activity

must, of course, be at least a motivating factor for the retaliatory deprivation to substantiate

this claim. DeJong alleges that Ball reviewed the student complaint and its supporting

documents before issuing the NCOs eight days after receiving the Reporting Student’s EOA

complaint. Moreover, on information and belief, DeJong alleges that Pembrook knew of these

materials before he authorized the NCOs as well. DeJong also alleges that her protected

speech was at least a motivating factor in their decisions to take these actions.

A case-closure memorandum from Ball is attached to DeJong’s complaint. (Doc. 1-19).

The memorandum informed DeJong of the termination of the EOA investigation and

included copies of the Reporting Student’s initial complaint and supporting materials.

(Doc. 1, ¶ 158; Docs. 1-20; 1-21; 1-22). The case-closure memorandum also stated a possible

rationale behind the NCOs. Apparently, the NCO pertaining to the Reporting Student was

issued based on the student’s written complaint alleging that DeJong engaged in a pattern of

behavior amounting to religious discrimination/harassment by sharing social media

materials, telling the student of her doomed position in the event of a rapture, and

recommending a podcast called “Demons are Real” to the Reporting Student. In its initial

inquiry into the allegations, the EOA also learned that another student recalled that DeJong

addressed a Black person using a racial slur and made a threatening statement to that student,

and, thus, issued an NCO against that student (who was ultimately unwilling to participate

further with the investigation).

To begin, the allegation that DeJong’s speech motivated the decision to issue the

NCOs is conclusory and not entitled to an assumption of truth. DeJong also asserts

knowledge on behalf of Ball and Pembrook as to her speech. Of course, awareness or

knowledge of the protected speech is one component of demonstrating speech as a

motivating factor. See Daza v. Indiana, 941 F.3d 303, 309 (7th Cir. 2019) (“As a threshold matter,

the plaintiff must show that the defendant was aware of the protected conduct.”). Simply

alleging that Ball and Pembrook knew of the protected speech, without more, would not lead

to a reasonable inference that DeJong’s speech motivated the issuance of the NCOs, because

a fairly “obvious alternative explanation” for the issuance of the NCOs exists, see Ashcroft v.

Iqbal, 556 U.S. 662, 682 (2009), that Pembrook and Ball issued the NCOs while further

investigating the Reporting Student’s formal complaint that DeJong perpetuated

discrimination and harassment. (Doc. 1, ¶ 158; Docs. 1-20; 1-21; 1-22). For example, DeJong

did not also allege suspicious timing (as the NCOs were issued promptly after receipt of the

student complaint, not after the protected speech itself). But DeJong attached the Reporting

Student’s EOA complaint and the case-closure memorandum to her complaint, which both

support the notion that Ball and Pembrook were motivated by DeJong’s protected speech in

issuing the NCOs. The case-closure memorandum appears to indicate that Pembrook and

Ball considered DeJong’s expressions of her religious and political beliefs with the Reporting

Student in issuing at least one of the NCOs (while the other might have been based on

threatening and racially charged remarks which may not qualify as protected speech

depending on the investigation). Given the EOA complaint and memorandum, DeJong has

properly pleaded that her protected speech was at least a motivating factor in the issuance of

the NCOs. As such, she has properly pleaded a constitutional violation.

Again, because DeJong has properly pleaded a constitutional violation, Pembrook

and Ball can receive qualified immunity only if their conduct was not clearly established

as unlawful. In other words, there must be settled authority that would cause Pembrook

and Ball to understand the illegality of their actions. As explained above with respect to Robb,

an individual’s right against retaliation for protected speech under the First Amendment is

not a new constitutional principle. While DeJong does not raise any cases clearly establishing

that the no-contact orders are unlawful, she provides analysis through Tinker and Mahanoy

that schools may not restrict political speech that does not substantially disrupt university

activities, especially off-campus speech on personal social media accounts. See Tinker v. Des

Moines Independent Community School District, 393 U.S. 503 (1969); see also Mahanoy, 141 S. Ct.

2038 (2021). Moreover, government “officials can still be on notice that their conduct violates

established law even in novel factual circumstances,” if the state of the law at the time

provided fair warning that their alleged conduct was unconstitutional. Hope v. Pelzer, 536 U.S.

730, 741 (2002). As described above with Robb, if Pembrook and Ball issued the NCOs

motivated by and as retaliation for DeJong’s statements and social media posts, they would

have known that their actions infringed on DeJong’s First Amendment rights. Thus,

Pembrook and Ball are not entitled to qualified immunity at this stage as to Count One.

C. Count Two – Viewpoint and Content Discrimination

Discrimination against speech because of its message is presumed unconstitutional, and

the government may not regulate speech based on its substantive content or the message it

conveys. Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 828–29 (1995).

“When the government targets not subject matter, but particular views taken by speakers on

a subject, the violation of the First Amendment is all the more blatant.” Id. at 829. Thus,

viewpoint discrimination is an egregious form of content discrimination. Id. To substantiate

a claim for First Amendment viewpoint and content discrimination, DeJong must show that

(1) government officials regulated her speech and (2) that the regulation was motivated by

the ideology or the opinion or perspective that she wished to express. Id.

i. Defendant Robb

As to Robb, DeJong fails to state a claim in the first instance. The complaint is devoid

of any allegations that Robb regulated or even attempted to regulate DeJong’s speech. Even

Robb’s program-wide email promising to reevaluate the student conduct policy to account

for oppressive acts cannot be considered a regulation. DeJong does not allege that Robb did,

in fact, change the student conduct policy in a way that regulated her speech for its content

or viewpoint. Again, to summarize, DeJong alleges that Robb directed students complaining

of DeJong’s statements to speak with Dean Leonard, contacted alumni to discuss DeJong’s

statements, revealed that DeJong was under investigation, and publicly accused DeJong of

oppressive acts and misconduct. These actions do not constitute regulation or enforcement

of a rule promulgated under the authority of the school as with the challenged actions in

other content and viewpoint discrimination cases. See Nuxoll, 523 F.3d 668 (7th Cir. 2008)

(student challenged a school rule, and its application, forbidding derogatory comments, oral

or written, that referred to race, ethnicity, religion, gender, sexual orientation, or disability);

Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973) (graduate student

challenged expulsion for distributing newspaper on campus with indecent speech in

violation of a board bylaw and conduct code).

Even taking all well-pleaded allegations as true and drawing all reasonable inferences

in DeJong’s favor, DeJong fails to state a claim for content and viewpoint discrimination

against Robb. Her claims in Count Two against Robb must be dismissed.

ii. Defendants Pembrook and Ball

Moving to Pembrook and Ball, DeJong alleges that the issuance of the NCOs

constitutes content and viewpoint discrimination. The NCOs regulated DeJong’s speech in

that she was prohibited from speaking to three specific individuals. As discussed above, the

basis for issuance of at least one of the NCOs appears to be related to DeJong’s expression of

her religious and political views with the Reporting Student (whereas one of the NCOs may

be related to racially charged or threatening language). Indeed, the Reporting Student

referenced the religious and political beliefs expressed by DeJong that purportedly

engendered fear during in-class discussions and caused emotional damage. While the NCOs

are devoid of any restriction on speech of a certain subject matter or viewpoint, there is a

reasonable inference that the orders apply to DeJong solely because of the content of the

message she expressed in her posts and exchanges with other students. There is also no

indication that, pursuant to SIUE policy or practice, NCOs are issued immediately after a

student complaint is received against another student in a situation involving claims of

harassment. Moreover, as discussed above with Count One, DeJong has plausibly alleged

that her protected speech motivated Pembrook and Ball to issue the NCOs.

Therefore, DeJong has properly pleaded a constitutional violation against Pembrook

and Ball for content and viewpoint discrimination. The qualified immunity analysis follows

that in Count One. The right to be free from content or viewpoint discrimination is an

established constitutional principle. Here, it would be clear to a reasonable university official

that issuing NCOs to a student due to their expressed viewpoints on social media, in

conversations with other students, and during class discussions collides with that student’s

First Amendment rights. At this stage, Pembrook and Ball are not entitled to qualified

immunity on Count Two.

D. Count Three – Prior Restraint

Prior restraints, quintessential First Amendment violations, can be described as

threatened penalties for future speech. Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009).

The First Amendment protects speakers from such threats of punishment designed to

discourage future speech. Id. “A public-official defendant who threatens to employ

coercive state power to stifle protected speech violates a plaintiff’s First Amendment

rights.” Backpage.com, LLC v. Dart, 807 F.3d 229, 230-31 (7th Cir. 2015). For the NCOs to

constitute a prior restraint, DeJong must show that they entailed a threat to use state power

against future protected speech.

In the Seventh Circuit, it is clearly established that a no-contact directive can qualify as

a prior restraint. In Crue v. Aiken, a state university chancellor issued a “preclearance directive”

under which “No contacts [were] permitted with prospective student athletes…by University

students, employees or others associated with the University without express authorization of

the Director of Athletics or his designee.” 370 F.3d at 674–75. The chancellor threatened that

any intentional violations of the directive would not be condoned. Id. at 675. The Seventh

Circuit held, in 2004, that this directive violated clearly established First Amendment rights. Id.

at 679-80. Certainly, the NCOs at issue are different than the directive in Crue, but there are

pertinent similarities. Pembrook and Ball issued official NCOs to DeJong forbidding

communication with a group of students, requiring that any necessary communication proceed

through an official channel with approval, and threating punishment for violation of the orders

including speech directed to the individuals subjected to the orders.

Notably, no-contact orders can certainly be justified and are routinely permitted in

the university setting, for example, regarding sexual harassment complaints and

investigations pursuant to Title IX. But whether the NCOs pass constitutional muster is

not yet the question before the Court.

Building upon the analysis with the prior counts against Pembrook and Ball,

DeJong has plausibly pleaded that the NCOs were issued based on protected speech

relating to her religious and political beliefs, and that the NCOs applied to her based on

the content of the message she expressed in her posts and conversations. Moreover, the

NCOs threatened punishment for future speech with three students and mandated that

communication flow through a university official or approved third party. DeJong has

plausibly alleged a violation of a constitutional right, and the law regarding that right

against prior restraint on speech is clearly established. Again, at this time, Pembrook and

Ball are not entitled to qualified immunity for Count Three.

E. Count Five – Due Process Violation

Defendants did not offer argument regarding DeJong’s Fourteenth Amendment Due

Process claim in Count Five. In the motion to dismiss, due process is mentioned only to

describe the claims brought by DeJong. Thus, Defendants waived argument regarding

qualified immunity and dismissal of the due process claim. For now, that claim remains.

III. Rule 8 – Short and Plain Statement

Lastly, Defendants argue that DeJong’s complaint violates Federal Rule of Civil

Procedure 8 by failing to state a claim that is both short and plain. See FED. R. CIV. P. 8. DeJong

contends that, though Defendants desire a shorter complaint with each count reflecting the

specific relief sought, Rule 8 does not impose such requirements.

Notice sits at the heart of the Rule 8 pleading requirements. Where a lengthy complaint,

even with superfluous matter, provides the defendant notice of the plaintiff's claims, dismissal

is inappropriate under Rule 8. Stanard v. Nygren, 658 F.3d 792, 797-98 (7th Cir. 2011). Simply

put, “undue length alone ordinarily does not justify the dismissal of an otherwise valid

complaint.” Id. at 797. If undue length is paired with some other insufficiency, like

unintelligibility or incomprehensibility, a complaint may be justifiably rejected pursuant to Rule

8. Id. at 797-98. DeJong’s complaint does not fall in the realm of unintelligibility and, as seen,

successfully resists at least some of Defendants’ arguments that it fails to state a claim. While

quite detailed and lengthy, dismissal of DeJong’s complaint is not appropriate under Rule 8.

CONCLUSION

For these reasons, the Motion to Dismiss filed by Defendants Robb, Pembrook, and

Ball (Doc. 18) is GRANTED IN PART and DENIED IN PART. All of Plaintiff Maggie

DeJong’s claims seeking declaratory relief for the invalidation of SIUE Policies 3C6 and 3C7

are DISMISSED. For this reason and to be clear, the Court DISMISSES Count Four in its

entirety, along with parts of Counts Two, Three, and Five seeking to invalidate the policies.

Additionally, the Court DISMISSES Count Two as to Defendant Robb. DeJong is granted

leave to amend her complaint on or before April 10, 2023.

IT IS SO ORDERED.

DATED: March 20, 2023 Tl (oantting D

“oo

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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