The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ANDREW BABINSKI CIVIL ACTION
VERSUS 20-426-SDD-EWD
TODD QUEEN, ET AL.
RULING
This matter is before the Court on the Motion to Dismiss1 filed by defendants,
Kristin Sosnowsky (“Sosnowsky”), Shannon Walsh (“Walsh”), John Fletcher (“Fletcher”),
and Alan Sikes (“Sikes”) (collectively “Defendants”).2 Plaintiff Andrew Babinski
(“Babinski”) filed an Opposition,3 to which Defendants filed a Reply.4 For the following
reasons, Defendants’ Motion shall be granted in part and denied in part.
I. BACKGROUND
This is a free speech case. Babinski was a student in the Louisiana State University
School of Theatre Ph.D. program (“the Program”).5 Sosnowsky is alleged to be the Chair
of the LSU School of Theatre as well as a faculty member.6 She is sued in her official and
individual capacities.7 Walsh, Fletcher, and Sikes are alleged to be faculty members of
the School of Theater, and they are sued only in their individual capacities.8
1 Rec. Doc. No. 18.
2 Babinski dismissed his claims against Todd Queen. Rec. Doc. No. 13.
3 Rec. Doc. No. 22.
4 Rec. Doc. No. 23.
5 Rec. Doc. No. 1, p. 1.
6 Id. at 2.
7 Id.
8 Id. at 2–3.
Babinski enrolled in the Program in 2017, and Sosnowsky appointed him as a
graduate assistant.9 The Complaint is unclear, but at some point, Fletcher appointed
Babinski as his teaching assistant.10 Babinski chose the Program specifically because,
unlike others, it did not have a primary focus on “activist or social justice themes.”11
Babinski alleges that this was a misrepresentation, and, in fact, several aspects of the
Program were not as advertised.12
In the spring semester of 2019, Babinski enrolled in Walsh’s course “Gender,
Sexuality, and Performance.”13 Babinski avers that the Program advertised the course as
an “academic discussion about gender and sexuality in performance,” but in reality it was
a “liberal indoctrination course where opposing opinions and critical discussion were often
met with hostility from certain students and Professor Walsh, herself.”14 Babinski voiced
unpopular opinions in class, and he alleges that Walsh and his classmates rewarded him
with abuse and mistreatment.15 Babinski attempted to discuss his concerns around
midterms with Walsh, but Walsh allegedly dismissed his “concerns and escalated the
pattern of mistreatment, even telling Babinski that he deserved the harm he’d experienced
in class.”16
Babinski used the course’s final paper to express his concerns about the “Gender,
Sexuality, and Performance” course and the Program as a whole.17 He alleges he used
9 Id. at 4.
10 Id.
11 Id.
12 For example, the content of some courses did not match their descriptions, while other courses were not
taught at all. Id. at 4–6.
13 Id. at 6.
14 Id.
15 Id.
16 Id.
17 Id. at 7.
“performative writing” to express that he felt mistreated and discriminated against when
he expressed his views inside and outside of class.18 Babinski allegedly learned about
performative writing from Walsh and others on the faculty.19 According to Babinski,
performative writing is:
[A] style whereby the writer is trying to perform a concept or idea through
language, manner, and form, in addition to its content. It is most often done
by liberal, feminist, anti-racist scholars as a means of trying to use words to
create a sensation of the very experience they are describing. As a
performance makes you “feel something” in an effort to make you
understand another person’s life, this form of writing seeks to do the same—
not through only describing it, but in the process of actually sensorially
experiencing something.20
Babinski’s final paper allegedly included expletives and harsh criticism of faculty members
and peers—but no threats.21 It purportedly included the disclaimer that “his writing was
performative and exaggerated.”22 In the paper, Babinski asked that Walsh share the
paper with Fletcher and Sikes and requested that the three of them meet to discuss
Babinski’s concerns about the Program.23 Walsh took it a step further.
Walsh forwarded the paper to Sosnowsky who then forwarded it to the LSU Police
Department and the LSU Office of Student Advocacy and Accountability.24 The LSU
Police Department allegedly found that the paper presented no actionable security issues,
and the Office of Student Advocacy and Accountability allegedly found no violation of LSU
policies and refused to issue a “no contact directive.”25 Babinski alleges that the Program
faculty took his discipline into their own hands.
18 Id.
19 Id.
20 Id.
21 Id. at 8.
22 Id.
23 Id.
24 Id. at 8.
25 Id.
Walsh allegedly “caused Babinski to be placed on academic probation,”
presumably by failing him for the course, and Sosnowsky revoked his graduate
assistantship.26 As a result, Babinski lost his graduate assistantship stipend, his tuition
waiver, and his non-resident fee waiver.27 Babinski alleges that Sosnowsky also
prevented Babinski from using the Program’s facilities for a project.28 Babinski alleges
that Defendants made numerous false claims about him to the Office of Student Advocacy
and Accountability and withheld mitigating information.29 Babinski allegedly sought to
make amends over the summer.
According to Babinski, his entreaties to Defendants over the summer were met
with silence.30 Defendants allegedly “collectively” decided that they would refuse to teach,
and administer exams to, Babinski.31 Since Defendants make up three-fourths of the
Program’s faculty, Babinski would have had extreme difficulty fulfilling the prerequisites
to obtain his Ph.D.32 Todd Queen, the then-dean of the LSU College of Music and
Dramatic Arts, advised Babinski that given the Defendants’ refusals to teach him,
Babinski could not continue in the Program.33 Queen also allegedly misled Babinski as to
various university procedures that Babinski could have utilized which may have allowed
him to maintain enrollment.34
26 Id. at 9.
27 Id.
28 Id.
29 Id. at 9–10.
30 Id. at 10.
31 Id.
32 Id.
33 Id.
34 Id.
Babinski continued in the Program through the fall 2019 semester.35 He took one
course within the Program and three additional courses for his minor concentration.36 He
allegedly completed the courses without incident.37 Meanwhile, Babinski attempted to
resolve the situation with Defendants, but they refused to reconsider their positions.38 At
the end of the fall 2019 semester, Babinski had only three courses remaining in the
Program before achieving the “milestone” of completing his coursework which would have
led him to “certain professional benefits and opportunities.”39 Babinski transferred to the
department of philosophy and sued Defendants.40
Babinski brings six constitutional claims using 42 U.S.C. § 1983 as the procedural
vehicle. First, Babinski contends that his speech in and outside of class and in his paper
constitutes protected speech.41 He argues that Defendants’ “decision to refuse to teach
Babinski or administer general exams, and Dean Queen’s refusal to permit Babinski to
continue in the Program, constitute a de facto expulsion from the Program resulting from
Babinski’s protected speech.”42 Second, and similarly, Babinski argues that Defendants’
actions after he submitted his paper violated his right to be free from retaliation for his
protected speech.43 Third, Babinski asserts that he was denied procedural due process
prior to his expulsion in violation of the Fourteenth Amendment.44 Fourth, he asserts an
analogous substantive due process claim.45 Fifth, Babinski asserts a class of one equal
35 Id.
36 Id. at 10–11.
37 Id. at 10–11.
38 Id. at 11.
39 Id.
40 Id.
41 Id. at 12.
42 Id.
43 Id. at 13.
44 Id. at 14.
45 Id. at 15–16.
protection claim, arguing that the Defendants’ actions toward Babinski differed
considerably from their treatment of other, similarly situated students without sufficient
justification.46 Sixth, Babinski alleges that Defendants conspired to violate his civil rights.47
Babinski seeks damages as well as injunctive relief. As to the requested injunctive
relief, Babinski asks the Court to issue a permanent injunction mandating that Sosnowsky
reinstate Babinski in the Program and remove all impediments to his completion thereof.48
He also asks the Court to enjoin Defendants from disseminating further information about
this matter, including his paper, and from further disparaging Babinski to other persons.49
II. LAW AND ANALYSIS
The Court will proceed in three steps. First, the Court will determine whether the
Eleventh Amendment bars Babinski’s claims. Then the Court will consider the substance
of Babinski’s claims. Finally, the Court will consider Defendants’ assertion of qualified
immunity.
A. Sovereign Immunity
Defendants assert that Babinski’s claims are barred by the Eleventh Amendment
which “bars suits in federal court by citizens of a state against their own state or a state
agency or department.”50 Plaintiff counters that Ex parte Young applies to the claims
against Sosnowsky in her official capacity.51
Under the Eleventh Amendment, federal courts lack jurisdiction over a state official
sued in her official capacity unless the state has waived its sovereign immunity or
46 Id. at 16.
47 Id. at 17.
48 Id. at 18.
49 Id.
50 Rec. Doc. No. 18-1, p. 4 (quoting Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 185 (5th Cir. 1986).
51 Rec. Doc. No. 22, p. 3–4.
Congress has clearly abrogated it.52 Section 1983 does not abrogate state sovereign
immunity.53 However, under Ex parte Young, suits by private citizens against state officers
in their official capacities are not categorically barred.54 “There are three basic elements
of an Ex parte Young lawsuit. The suit must: (1) be brought against state officers who are
acting in their official capacities; (2) seek prospective relief to redress ongoing conduct;
and (3) allege a violation of federal, not state, law.”55
As to Babinski’s requested relief of reinstatement, the first and third requirements
are clearly met. Sosnowsky is alleged to be a state actor, and she is sued in her official
capacity. All of Plaintiff’s causes of action are based on violations of federal law.
Resolution of the second requirement warrants further analysis.
As to prospective relief:
As long as the claim seeks prospective relief for ongoing harm, the fact that
a current violation can be traced to a past action does not bar relief under
Ex parte Young. Plaintiffs must allege that the defendant is violating federal
law, not simply that the defendant has done so at some point in the past.
Once they meet that requirement, however, the complaint's straightforward,
present-tense allegations are sufficient to demonstrate the ongoing nature
of the alleged un[lawful] conduct.56
Babinski suffers from the Defendants’ ongoing conduct—the barriers they have erected
to his completion of the Program. As such, despite the fact that his allegedly
unconstitutional de facto expulsion occurred in the past, under Ex parte Young, he can
seek redress for the continued conduct which allegedly bars him from the Program.
52 NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393–94 (5th Cir. 2015).
53 Id. at 394.
54 Id.
55 Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020).
56 Id. at 378. (cleaned up).
This result is consistent with the Fifth Circuit’s Ex parte Young jurisprudence in the
employment context. In Nelson v. Univ. of Tex. at Dallas, the Fifth Circuit held that “a
request for reinstatement is sufficient to bring a case within the Ex parte Young exception
to Eleventh Amendment immunity, as it is a claim for prospective relief designed to end
a continuing violation of federal law.”57 Although the Nelson court addressed this issue in
the employment context, the court's reasoning applies when a plaintiff seeks
reinstatement to an educational program. Therefore, Babinski’s requested relief of
reinstatement into the Program and removal of “all barriers” to his continuation in the
Program is cognizable under Ex parte Young.
Defendants also argue that, although they are each named in their individual
capacities, Babinski has sued them for actions taken in their official capacities. Therefore,
Defendants assert, they are entitled to sovereign immunity as state actors for those
actions. Relatedly, Defendants contend that they are not “persons” within the meaning of
§ 1983. Babinski counters that the Supreme Court has dismissed both arguments.
In Scheuer v. Rhodes,58 the Supreme Court explained that, “[w]hile it is clear that
the doctrine of Ex parte Young is of no aid to a plaintiff seeking damages from the public
treasury, damages against individual defendants are a permissible remedy in some
circumstances notwithstanding the fact that they hold public office.”59 The Court
elaborated, quoting Ex parte Young:
Ex parte Young teaches that when a state officer acts under a state law in
a manner violative of the Federal Constitution, he comes into conflict with
the superior authority of that Constitution, and he is in that case stripped of
his official or representative character and is subjected in his person to the
consequences of his individual conduct. The State has no power to impart
57 535 F.3d 318, 324 (5th Cir. 2008).
58 416 U.S. 232 (1974).
59 Id. at 237. (cleaned up).
to him any immunity from responsibility to the supreme authority of the
United States.60
Babinski alleges that Defendants violated his federal constitutional rights. Thus,
Defendants are “stripped of [their] official or representative character” and subjected to
individual liability.
As to Defendants’ argument that they are not “persons” within the meaning of §
1983, the Supreme Court held in Hafer v. Melo61 that “state officials, sued in their
individual capacities, are ‘persons’ within the meaning of § 1983. The Eleventh
Amendment does not bar such suits, nor are state officers absolutely immune from
personal liability under § 1983 solely by virtue of the ‘official’ nature of their acts.”62
Defendants’ argument is ill-conceived. Accordingly, Defendants’ assertion of sovereign
immunity in their individual capacities fails.
Babinski prays that the Court enjoin Defendants from further disseminating
information about this matter, including Babinski’s paper, and from disparaging Babinski.
Defendants point out that Babinski does not allege that Fletcher or Sikes disseminated
information about Babinski or his paper or that they disparaged him. Thus, the Court finds
that enjoining them to refrain from doing something that they are not alleged to have done
would be inappropriate as there is no concrete issue before the Court. As to Walsh,
because she is sued only in her individual capacity, this could be cognizable relief if
Babinski is able to show that Walsh’s complained-of actions violate some right,
constitutional or otherwise, of Babinski. The same analysis applies to Sosnowsky in her
individual capacity, but the result may differ as to the suit against her in her official
60 Id. (emphasis added) (internal citations omitted).
61 502 U.S. 21 (1991).
62 Id. at 30.
capacity, depending on the application of Ex parte Young. The Court will grant Babinski
leave to amend the Complaint, so issues related to potential relief need not be resolved
at this very early stage in this litigation.
In sum, the Eleventh Amendment does not bar Babinski from seeking injunctive
relief as to Sosnowsky and money damages from each of the Defendants in their
individual capacities. Defendants’ Motion is denied on this point.
B. Rule 12(b)(6) Motion to Dismiss
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”63 The Court
may consider “the complaint, its proper attachments, ‘documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.’”64 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”65
In Bell Atlantic Corp. v. Twombly, the United States Supreme Court set forth the
basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss.
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.”66 A complaint is also insufficient if it merely “tenders ‘naked
63 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
64 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio
Equitieis, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
65 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
66 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
[hereinafter Twombly].
assertion[s]’ devoid of ‘further factual enhancement.’”67 However, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that a defendant is liable for the misconduct alleged.”68 In order to
satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility that
the defendant has acted unlawfully.”69 “Furthermore, while the court must accept well-
pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.’”70 On a
motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as
a factual allegation.”71
C. Section 1983 Generally
The Civil Rights Act of 1964, 42 U.S.C. § 1983, creates a private right of action for
redressing the violation of federal law by those acting under color of state law.72 It
provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured....73
“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights elsewhere conferred.’”74
67 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) [hereinafter Iqbal].
68 Id.
69 Id.
70 Taha v. William Marsh Rice Univ., 2012 WL 1576099, at *2 (S.D. Tex. 2012) (quoting Southland Sec.
Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
71 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
72 See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984); Middlesex County Sewerage
Auth. v. Nat’l Sea Clammers Ass'n, 453 U.S. 1, 19 (1981).
73 42 U.S.C. § 1983 (1996).
74 Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, (1979));
accord Graham v. Connor, 490 U.S. 386, 393–94 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985); Jackson v. City of Atlanta, Tex., 73 F.3d 60, 63 (5th Cir. 1996), cert. denied, 519 U.S. 818
(1996); Young v. City of Killeen, Tex., 775 F.2d 1349, 1352 (5th Cir. 1985).
To prevail on a § 1983 claim, a plaintiff must prove that a person acting under the
color of state law deprived him of a right secured by the Constitution or laws of the United
States.75 A § 1983 complainant must support his claim with specific facts demonstrating
a constitutional deprivation and may not simply rely on conclusory allegations.76
D. First Amendment Claims77
Babinski asserts that Defendants violated his First Amendment rights when they
de facto expelled him from the Program because of his paper.78 He asserts that the paper
was protected speech under applicable precedent. But the parties disagree as to what
constitutional standard applies to Babinski’s paper. The Court is placed in the difficult and
unenviable position of analyzing Babinski’s First Amendment rights as to his paper while
the paper itself is not before the Court.
Babinski urges the Court to analyze his paper under Tinker v. Des Moines
Independent Community School District.79 The Supreme Court in Tinker stated that
students in public schools do not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.”80 They cannot be punished for expressing their
personal views on school premises whether “in the cafeteria, or on the playing field, or on
75 See Blessing v. Freestone, 520 U.S. 329, 340 (1997); Daniels v. Williams, 474 U.S. 327, 330 (1986);
Augustine v. Doe, 740 F.2d 322, 324–25 (5th Cir. 1984).
76 See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.
1990), cert. denied, 498 U.S. 908 (1990); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.1986); Angel v.
City of Fairfield, 793 F.2d 737, 739 (5th Cir. 1986).
77 Neither party briefs whether Babinski’s paper implicated matters of public concern, which would entitle it
to greater constitutional protections than if the paper merely implicated matters of private concern. Snyder
v. Phelps, 562 U.S. 443, 453 (2011). Additionally, Babinski’s paper is not in the record, so the Court cannot
independently make that assessment. Because neither party briefs the issue and the Court cannot make
the assessment, the Court will assume for the purposes of this Ruling that the content of Babinski’s paper
can be considered a matter of public concern. However, the Court will require Babinski’s paper to analyze
this issue at future stages of this litigation.
78 Rec. Doc. No. 1, p. 12.
79 393 U.S. 503 (1969).
80 Id. at 506.
the campus during the authorized hours,”81 unless the speech would “materially and
substantially interfere” with schoolwork or discipline or “impinge upon the rights of other
students.”82 According to Babinski, his paper did not materially or substantially interfere
with schoolwork or discipline or impinge upon the rights of other students, and therefore,
Defendants’ punishment of Babinski because of his paper was unconstitutional.
Defendants urge the Court to analyze Babinski’s paper under Hazelwood School
District v. Kuhlmeier.83 In Hazelwood, the Supreme Court held that:
Educators are entitled to exercise greater control over [curricular speech] to
assure that participants learn whatever lessons the activity is designed to
teach, that readers or listeners are not exposed to material that may be
inappropriate for their level of maturity, and that the views of the individual
speaker are not erroneously attributed to the school.84
If student speech falls within Hazelwood, “[e]ducators enjoy far greater latitude to regulate
this [] category of expression and do not offend the First Amendment ‘so long as their
actions are reasonably related to legitimate pedagogical concerns.’”85
In Morgan v. Swanson, the en banc Fifth Circuit recognized that the “critical inquiry
in deciding whether speech is ‘school-sponsored’ under Hazelwood is whether it could
reasonably be understood to bear the school’s imprimatur, which is synonymous with
‘sanction,’ or ‘approval.’”86 The court continued:
Relevant considerations include[:] (1) where and when the speech
occurred; (2) to whom the speech was directed and whether recipients were
a ‘captive audience’; (3) whether the speech occurred during an event or
activity organized by the school, conducted pursuant to official guidelines,
or supervised by school officials; and (4) whether the activities where the
81 Id. at 512–13.
82 Id. at 509 (internal citations omitted).
83 484 U.S. 260 (1988).
84 Id. at 271.
85 Morgan v. Swanson, 659 F.3d 359, 376 (5th Cir. 2011), cert denied, 567 U.S. 905 (2012) (quoting Hazel
Wood School Dist. v. Kulmeier, 484 U.S. 260, 273 (1988)).
86 Id.
speech occurred were designed to impart some knowledge or skills to the
students.87
The Fifth Circuit noted that while Tinker established the default rule, “with every
subsequent student-speech decision, the Supreme Court has ‘expanded the kinds of
speech schools can regulate…’”. “The rights announced in Tinker do not extend to several
broad categories of student speech: ‘lewd, indecent, or offensive’ speech; school-
sponsored speech; and speech ‘that a reasonable observer would interpret as advocating
illegal drug use.’”88
Babinski attempts to distinguish Hazelwood on its facts. In Hazelwood, the
principal of a high school deleted two pages of articles from Hazelwood East’s
newspaper, Spectrum.89 Spectrum was written and edited by the Journalism II class and
subsidized by the Board of Education.90 The principal excised two pages of the
newspaper to prevent the publication of articles on Hazelwood East students’ experiences
with pregnancy and the impact of divorce on students at the school.91
The Supreme Court began its analysis by restating the Tinker standard.92 Then,
citing Bethel School Dist. No. 403 v. Fraser,93 which considered a student’s lewd speech
at a school assembly, the Court noted that it has recognized that “the determination of
what manner of speech in the classroom or in school assembly is inappropriate properly
rests with the school board, rather than with the federal courts.”94
87 Id. (internal citations omitted).
88 Id. at 374. (internal citations omitted).
89 Hazelwood School Dist., 484 U.S. at 262.
90 Id.
91 Id. at 263.
92 Id. at 266.
93 478 U.S. 675 (1986).
94 Hazelwood School Dist., 484 U.S. at 267. (internal citations omitted).
The Court continued, “[t]he question whether the First Amendment requires a
school to tolerate particular student speech—the question that we addressed in Tinker—
is different from the question whether the First Amendment requires a school affirmatively
to promote particular student speech.”95 Hazelwood presented the latter question which
“concerns educators’ authority over school-sponsored publications, theatrical
productions, and other expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the school.”96 In contrast,
Tinker presented the former question which “addresses educators’ ability to silence a
student’s personal expression that happens to occur on the school premises.”97
In holding that educators may exercise greater control over school-sponsored
speech, the Court cited pedagogical concerns—the student-speaker must learn whatever
the activity is designed to teach—and two different content concerns.98 First, the school
must be able to protect listeners and readers from content that may be “inappropriate for
their level of maturity…”.99 And second, the school must be able to “disassociate itself’”
from speech so that “the views of the individual speaker are not erroneously attributed to
the school.”100 Applying these rationales, the Court concluded that a school must be able
to refuse to disseminate “student speech…under its auspices,” in order to achieve these
goals.101 Accordingly, the Court “conclude[d] that the standard articulated in Tinker for
determining when a school may punish student expression need not also be the standard
95 Id. at 270–71 (emphasis added).
96 Id. at 271.
97 Id.
98 Id.
99 Id.
100 Id.
101 Id. at 271–72.
for determining when a school may refuse to lend its name and resources to the
dissemination of student expression.”102
Defendants ask Court to follow the Second Circuit’s application of Hazelwood as
exemplified by Collins v. Putt.103 The plaintiff, Collins, enrolled in an online class titled
“Communications 101” at Charter Oak State College.104 Putt, the instructor, asked the
class to watch a video that depicted a young man conversing with an elderly person and
respond to questions about the video.105 The responses were recorded on an online
message board available only to students enrolled in the class, Putt, and college
administrators.106 Collins’ post criticized the video itself, rather than responding to the
prompt.107 Putt removed Collins’ post, and Collins sued, claiming that Putt’s deletion of
his post violated the First Amendment.108
The Second Circuit stated:
Collins's blog post bears the hallmarks of school sponsorship. It was made
specifically in response to a class assignment, under the supervision of a
college faculty member, and on a message board that was provided by the
college offering the class. The message board in turn was designed as a
pedagogical tool to convey information to class participants and to receive
communications from them, particularly, their completed class
assignments. The message board bore the college's initials and was
accessible only to the class's students, instructor, and the college's
administrators…. Under these circumstances, the District Court did not err
102 Id. at 272–73. In a footnote, the Court noted, but did not decide, that an educator’s censoring of a school-
sponsored expressive activities at the college or university level may be entitled to a lesser degree of
deference from the courts. Id. at n. 7. Subsequent courts have likewise indicated that some of Hazelwood’s
concerns, such as protecting immature audiences from mature materials, tend to diminish at the university
or college level. Hosty v. Carter, 412 F.3d 731, 734 (7th Cir. 2005). Indeed, in Healy v. James, the Court
wrote, “[T]he college classroom with its surrounding environs is peculiarly the marketplace of ideas…” 408
U.S. 169, 180 (1972).
103 979 F.3d 128 (2d Cir. 2020), cert. denied, 141 S. Ct. 1465, 209 L. Ed. 2d 181 (2021).
104 Id. at 131.
105 Id.
106 Id.
107 Id.
108 Id.
in determining that the Hazelwood standard rather than the Tinker standard
applies.109
As to the application of the Hazelwood standard, the Second Circuit stated that:
Putt’s removal of Collins's blog post is thus most reasonably understood to
ensure that the message board was used for its school-sponsored,
pedagogical purpose, i.e., for students to post completed class assignments
and for online discussion of those postings to further the communications
lessons the assignment was intended to impart, without diverting attention
to the non-responsive subject of the quality of classroom materials.110
Babinski urges the Court to decline to follow Collins, arguing that Collins reflects an overly
broad interpretation of Hazelwood.
Defendants and the Collins court are correct that Hazelwood has significantly
expanded from its genesis as a student newspaper case. Indeed, a majority of the Fifth
Circuit, sitting en banc in Morgan v. Swanson and considering whether a defendant-
elementary school principal was entitled to qualified immunity, recognized that “a number
of our sister circuits…have treated Hazelwood as creating a broad category of speech
restrictions entitled to deference from the federal courts.”111 However, a separate majority
in Morgan clearly indicated that the Fifth Circuit ascribed to a narrow view of Hazelwood.
Judge Elrod, writing for the majority as to the part relevant to this case, began by
noting that “the Hazelwood exception should be construed narrowly. It applies only where
the speech is school-sponsored, a determination that turns on whether the views of the
individual speaker might be erroneously attributed to the school.”112 Quoting Justice
Alito’s concurrence in Morse v. Frederick113 Judge Elrod wrote, “Hazelwood ‘allows a
109 Id. at 133–34.
110 Id. at 134.
111 Morgan v. Swanson, 659 F.3d 359, 377 (5th Cir. 2011).
112 Id. at 408–09 (cleaned up).
113 551 U.S. 393, 423 (Alito, J., concurring).
school to regulate what is in essence the school’s own speech, that is, articles that appear
in a publication that is an official school organ.’”114 Further, ‘‘[t]he proposition that schools
do not endorse everything that they fail to censor is not complicated.’”115
Application of the Fifth Circuit’s narrow interpretation of Hazelwood yields the
conclusion that Hazelwood does not apply in the instant case. The Court must consider
whether Babinski’s paper was curricular, and if so, whether students, parents, and
members of the public might reasonably perceive it to bear the imprimatur of the school.
Babinski’s paper was curricular. Professor Walsh assigned the paper as the final
project in THTR 7923, and Babinski wrote the paper to fulfill that assignment.
However, the court finds that students, parents, and members of the public could
not reasonably perceive Babinski’s paper to bear the imprimatur of the school. First,
Babinski alleges that he requested in the paper that Walsh “share the paper with
Professors Fletcher and Sikes, but no one else…”.116 The intended restricted circulation
of the paper makes it less likely that anyone would read the paper and therefore would
have the opportunity to perceive that the paper bore the school’s imprimatur. Additionally,
the alleged lack of circulation sharply distinguishes the instant case from the student
newspaper at issue in Hazelwood and would assuage the Hazelwood Court’s concern
with the dissemination of the challenged material.
Second, there is little risk that Babinski’s views could be erroneously attributed to
the school. Reasonable people would not assume that a student’s submission for an
assignment constitutes the school itself “speaking.” Were that the case, every student’s
114 Morgan, 659 F.3d at 409.
115 Id. (quoting Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990)).
116 Rec. Doc. No. 1, p. 8.
submission, from the second grader’s spelling test to the post-graduate’s final paper,
would be considered the speech of the school. Third, considering Justice Alito’s
concurrence, Babinski’s paper was not published in an official school organ—it wasn’t
published at all. Simply put, based on the facts alleged in the Complaint, it is unlikely that
any other student, parent, teacher, or member of the public would see Babinski’s paper
and incredulous that one of those hypothetical people would believe that Babinski’s paper
was the school’s speech. As such, the Court applies Tinker.
Based on the facts alleged in the Complaint, Babinski’s paper is entitled to First
Amendment protection under Tinker. “[S]tudent’s speech, which neither interrupt[s]
school activities nor intrude[s] in the school affairs or the lives of others, [is] protected by
the First Amendment. Only where a student’s speech actually causes or reasonably might
be projected to cause a substantial disruption of or material interference with school
activities may a school impose discipline for student speech.”117 Babinski’s paper,
pseudo-confidential as it was, did not create a substantial disruption in school activities.
Moreover, based on the facts alleged in the Complaint, Defendants could not have
reasonably projected a substantial disruption or material interference with school activities
because Babinski intended that he and Defendants meet to address his concerns
privately, rather than address them in the class environment around his peers. As such,
on the face of the Complaint, Babinski’s paper is entitled to First Amendment protection
under Tinker.
Alternatively, assuming Babinski’s paper was curricular speech and Hazelwood
applies, the Court considers the dual nature of Babinski’s paper. First, it was his
117 Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 265 (5th Cir. 2019)
(cleaned up).
completion of a course assignment. Second, it was allegedly an expression of his
opinions as to the Program in general and the faculty who taught it. As to the first purpose
of his paper, the educator’s authority to create, assign, and grade assignments is
unquestioned, and courts do not engage in post hoc assessments of educator’s grading
decisions.118 As has been suggested,119 an educator’s grading decision of a student’s
paper need not implicate the First Amendment. However, assuming an educator’s grading
decision does require application of Hazelwood, the issuance of a failing grade for a paper
that does not conform to the assignment furthers the pedagogical purpose of ensuring
that students learn from the assignment.
But Babinski alleges that the content of his paper led to his de facto expulsion from
the Program.120 Accepting Defendants’ prerogative to grade Babinski’s assignments as
they deemed appropriate narrows the focus to their actions after the assignment was
graded. The question becomes: were Defendants’ alleged actions in de facto expelling
Babinski reasonably related to a legitimate pedagogical purpose?
Babinski has plausibly alleged that the de facto expulsion was not reasonably
related to a legitimate pedagogical purpose. Defendants’ pedagogical purpose must have
concerns of potential future disruptions since Babinski’s participation in THTR 7923 had
come to an end. Defendants’ referring Babinski’s paper to the LSU Police Department
and LSU Office of Student Advocacy and Accountability fell within the pedagogical
purpose of ensuring a safe classroom but given that those organizations found “no
actionable security issues” and no violations of LSU policies, Defendants’ alleged de facto
118 Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978); Settle v. Dickson Cty. Sch. Bd.,
53 F.3d 152, 155 (6th Cir. 1995).
119 Settle v. Dickson Cty. Sch. Bd., 53 F.3d 152, 156 (6th Cir. 1995) (Batchelder, J., concurring).
120 Rec. Doc. No. 1, p. 12.
expulsion cannot be said to “reasonably relate” to that goal. Further, Babinski alleges that
after Walsh, Fletcher, and Sikes refused to teach him in the fall 2019 semester, he
completed four more courses “without causing disruption or incident.”121 This allegation,
accepted as true, further diminishes the reasonable relation between Babinski’s de facto
expulsion and the concern for classroom safety. As such, assuming Hazelwood applies
and the veracity of the facts alleged in the Complaint, Defendants’ de facto expulsion of
Babinski was not reasonably related to a valid pedagogical interest. Therefore, under
Hazelwood, Babinski has plausibly alleged that Defendants violated his rights under the
First Amendment.
Based on the foregoing, Babinski has also stated a claim for First Amendment
retaliation. To state a claim of First Amendment retaliation, a plaintiff must show:
(1) he was engaged in constitutionally protected activity, (2) the defendants'
actions caused him to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity, and (3) the defendants'
adverse actions were substantially motivated against the plaintiffs' exercise
of constitutionally protected conduct.122
As explained above, Babinski has alleged that he was engaged in a constitutionally
protected activity under either Tinker or Hazelwood. Expulsion from a Ph. D. program is
injury that would “chill a person of ordinary firmness from continuing to engage” in criticism
of faculty. Finally, Babinski has alleged that Defendants de facto expelled him because
of the contents of his paper. Defendants’ Motion is denied as to Babinski’s First
Amendment claims.
121 Id. at 11.
122 Mills v. City of Bogalusa, 112 F. Supp. 3d 512, 516 (E.D. La. 2015).
E. Due Process Claims
Babinski argues that Defendants de facto expelled him from the Program without
due process. Defendants contend that Babinski does not have a protected property
interest in post-graduate education. Babinski rebuts that his admission into the Program
created an implied contract between himself and Louisiana State University, such that he
had a property interest in his completion of the Program. In other words, Babinski urges
that as long as he abided by the Program’s regulations and maintained satisfactory
academic performance, Defendants were required to allow him to work towards a Ph.D.
“To be entitled to the procedural protections of the Fourteenth Amendment,
[Babinski] must demonstrate he was deprived of either a liberty or a property interest.”123
“[P]roperty interests are created, and their dimensions defined, by existing rules or
understandings that stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.”124
Although the Fifth Circuit has identified a liberty interest in higher education,125 the
Fifth Circuit has held that there is “no state-created right to graduate-level education” in
Louisiana.126 However, it does not appear that the Fifth Circuit has had occasion to
consider Babinski’s contract argument. Louisiana courts have implicitly recognized a
123 Smith v. Davis, 507 F. App'x 359, 362 (5th Cir. 2013).
124 Id.
125 Plummer v. Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017), as revised (June 26, 2017) (quoting
Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158 (5th Cir. 1961)). Dixon did not discuss the student’s
interest in terms of property or liberty interests as it was decided prior to the Supreme Court’s decision in
Goss and its progeny. Importantly, Plummer recognized a state created liberty interest found in the Texas
Constitution.
126 Barnes v. Symeonides, 44 F.3d 1005 (5th Cir. 1995).
contractual relationship between a student and an educational institution,127 and several
federal courts of appeal have applied the implied contract theory urged here in
comparable contexts.128 But even though the “catalogues, bulletins, circulars, and
regulations of the institution made available to the matriculant may become part of the
contract…,” the student must establish an “entitlement to a tangible continuing benefit.”129
“In order to establish this type of entitlement, the student must point to an identifiable
contractual promise that the university failed to honor.”130 Babinski has failed to meet this
requirement under Fed. R. Civ. P. 12(b)(6).
Babinski has not alleged a contractual promise that the Program failed to honor.
He does not allege specific disciplinary procedures that were not followed. Nor does he
allege that Louisiana State University contractually agreed to allow him to continue
towards graduation provided he maintained satisfactory progress and follow the
Program’s regulations. While Babinski touches upon these issues in his Opposition, “it is
axiomatic that a complaint cannot be amended by briefs in opposition to a motion to
dismiss.”131 This axiom also requires dismissal of Babinski’s argument that his protected
liberty interests were violated because Babinski has not specifically alleged that his “good
name, reputation, honor, or integrity” are at stake.132 Therefore, Defendants’ Motion is
granted as to Babinski’s procedural due process claim, subject to leave to amend.
127 Babcock v. New Orleans Baptist Theological Seminary, 554 So. 2d 90, 95 (La. Ct. App. 1989), writ
denied, 558 So. 2d 607 (La. 1990); Fussell v. Louisiana Bus. Coll. of Monroe, Inc., 519 So. 2d 384 (La. Ct.
App. 1988); McKee v. Southfield Sch., 613 So. 2d 659, 661 (La. Ct. App. 1993); Simmons v. Sowela Tech.
Inst., 470 So. 2d 913 (La. Ct. App.), writ denied, 475 So. 2d 1109 (La. 1985).
128 See e.g. Bissessur v. Indiana Univ. Bd. of Trustees, 581 F.3d 599, 601 (7th Cir. 2009); Ikpeazu v. Univ.
of Nebraska, 775 F.2d 250, 253 (8th Cir. 1985).
129 Bissessur, 581 F.3d at 602 (7th Cir. 2009).
130 Id. (cleaned up).
131 Carroll v. SGS N. Am. Inc., 2018 WL 4001457, at *2 (M.D. La. Aug. 21, 2018).
132 Goss, 419 U.S. at 574 (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
Babinski’s substantive due process claim also fails. “To state a substantive due
process claim, a plaintiff must show that the government's deprivation of a property
interest was arbitrary or not reasonably related to a legitimate governmental interest.”133
As discussed above, Babinski has failed to demonstrate a protected property interest.
Babinski will have leave to amend. Defendants’ Motion is granted as to Babinski’s
substantive due process claim, subject to leave to amend.
F. Class of One Equal Protection Claim
Babinski asserts a class of one equal protection claim. The Fifth Circuit recently
explained:
Class-of-one equal-protection claims are an application of the principle that
the seemingly arbitrary classification of a group or individual by a
governmental unit requires a rational basis. To state a class of one claim
under the Equal Protection Clause, the plaintiff must allege that: (1) the
defendant intentionally treated plaintiff differently from others similarly
situated, and (2) the defendant lacked a rational basis for the difference in
treatment.134
Babinski alleges that “Dean Queen also misled Babinski as to various university
procedures in furtherance of the determination that Babinski could not continue in the
Program, even though other students were correctly advised of these procedures and
allowed to use them when issues with faculty arose.”135 Further, Babinski alleges that
“Professors Walsh’s, Sikes’, Fletcher’s, and Sosnowsky’s and Dean Queen’s actions
against Babinski differ considerably from their treatment of other, similarly situated
students without sufficient justification, making Babinski a ‘class of one’ who has suffered
discrimination.”136 Babinski’s class of one claim fails.
133 Williams v. Texas Tech. Univ. Health Scis. Ctr., 6 F.3d 290, 294 (5th Cir. 1993).
134 Martinez v. New Deal Indep. Sch. Dist., 802 F. App'x 98, 100 (5th Cir. 2020) (internal citations omitted).
135 Rec. Doc. No. 1, p. 10.
136 Id. at 16.
As the Fifth Circuit explained in Rountree v. Dyson,137 a plaintiff bringing a class of
one equal protection claim who merely “alleges that other similarly situated individuals
were treated differently, but [] points to no specific person or persons and provides no
specifics as to there violations” has not stated a class of one claim under Fed. R. Civ. P.
12(b)(6).138 The Fifth Circuit elaborated, “[a]n allegation that others were treated
differently, without more, is merely a legal conclusion that we are not required to credit.”139
Babinski has failed to identify specific persons. He has merely stated that “others were
treated differently,” and therefore he has failed to state a class of one Equal Protection
Claim. Babinski’s class of one equal protection claim is dismissed, subject to leave to
amend.
G. Conspiracy to Violate Civil Rights Claim
Babinski alleges that Defendants “in various combinations and through
correspondence and other overt acts, conspired to violate Babinski’s civil rights, including
but not limited to those rights described above.”140 Further:
Shortly before Babinski would return for the fall 2019 semester, and after
learning that they lacked the grounds to formally expel Babinski, Professors
Walsh, Fletcher, and Sikes collectively decided that they would refuse to
teach Babinski any more courses in the Program because of his paper and
would refuse to administer his general examinations.141
These are the only two allegations in the Complaint that bear on Babinski’s conspiracy
claim.
137 892 F.3d 681 (5th Cir. 2018).
138 Id. at 685.
139 Id.
140 Rec. Doc. No. 1, p. 17.
141 Id. at 10.
Defendants argue that Babinski’s allegations of conspiracy are conclusory and
insufficient under Fed. R. Civ. P. 12(b)(6).142 Babinski argues that the above allegations
are sufficient.143
To state a claim for conspiracy to violate civil rights, a “plaintiff must not only allege
facts that establish (1) the existence of a conspiracy involving state action, but also (2) a
deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.”144
Babinski has failed to state a claim for conspiracy to violate civil rights. As to his
First Amendment claims, he has sufficiently pled a violation of rights to satisfy the second
prong, but the same cannot be said for the rest of his claims. Moreover, his allegations of
conspiracy are conclusory and entitled to no deference. Defendants’ alleged “collective
decision” to refuse to teach Babinski is a legal conclusion. Similarly, Defendants’
“correspondence and other overt acts” provide the Court no basis to find it plausible that
Defendants agreed to do anything or how they did so. Therefore, Babinski’s claim for
conspiracy to violate civil rights is dismissed, with leave to amend.
H. Qualified Immunity
Babinski has only properly pled violations of the First Amendment, so the Court
need only consider qualified immunity in that context. Public officials are entitled to
qualified immunity unless the plaintiff demonstrates that (1) the defendant violated an
actual constitutional or federal statutory right that is clearly established under existing law,
and (2) if so, the defendant's conduct was objectively unreasonable in light of clearly
142 Rec. Doc. No. 18-1, p. 12–13.
143 Rec. Doc. No. 22, p. 19–20.
144 Shaw v. Villanueva, 918 F.3d 414, 419 (5th Cir. 2019) (internal citations omitted).
established law at the time of that conduct.145 To survive a motion to dismiss based on
qualified immunity, the plaintiff must allege sufficient facts, which, taken as true, show
that the defendant violated his constitutional rights which were clearly established at the
time of the violation. If the court determines that there was a violation of a right secured
by the Constitution, then it must determine whether the defendant could have reasonably
thought his actions were consistent with the rights they are alleged to have violated.146
The protections afforded by the qualified immunity defense turn on the “objective legal
reasonableness” of the defendant's conduct examined by reference to clearly established
law.147
Babinski attempts to shift the onus on Defendants to prove qualified immunity and
supply facts that tend to disprove the substance of his claims. At this stage, that is
inappropriate. Babinski must point to clearly established law that shows that Defendants
could not have reasonably thought that their actions were consistent with the rights they
are alleged to have violated.
Babinski’s argument that Tinker and Hazelwood have been settled law for decades
is unavailing. Babinski cannot simply point to the constitutional standard and state that,
since Defendants allegedly violated his rights under those standards, it was clearly
established at the time of his alleged de facto expulsion that Defendants were violating
his rights. Rather, he must point to analogous cases that demonstrate that it was clearly
established law that under facts analogous to those of this case, Defendants violated his
rights under the First Amendment. Therefore, Babinski’s First Amendment claims against
145 Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011); Hart v. Tex. Dep't of Criminal Justice, 106 F. App'x
244, 248 (5th Cir. 2004).
146 Anderson v. Creighton, 483 U.S. 635, 638 (1987).
147 Id. at 639.
Defendants in their individual capacities are dismissed without prejudice. Babinski’s First
Amendment claims against Sosnowsky in her official capacity are not subject to qualified
immunity and thus survive dismissal.
III. CONCLUSION
Defendants’ Motion148 is granted in part and denied in part, without prejudice.
Babinski will have 21 days from the date of this Ruling to amend the Complaint to cure
the deficiencies set forth above. Babinski shall also file a Rule 7(a) Response to the
qualified immunity defense asserted by the Defendants. Failure to comply with this
deadline will result in a dismissal with prejudice as to all claims except the First
Amendment claims.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on September 29, 2021.
S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
148 Rec. Doc. No. 18.