McCauley v. University of the Virgin Islands

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-3735

STEPHEN MCCAULEY,

Appellant

v.

UNIVERSITY OF THE VIRGIN ISLANDS; SEAN

GEORGES, in His Individual and Official Capacities;

LAVERNE RAGSTER, DR.

On Appeal from District Court

of the Virgin Islands

District Court No. 3-05-cv-00188

District Judge: The Honorable Curtis V. Gomez

Argued May 3, 2010

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges

(Filed: August 18, 2010 )

1

Samuel H. Hall, Jr.

Marie E. Thomas Griffith (argued)

Hall & Griffith

No. 91B Solberg

P.O. Box 305587

Charlotte Amalie, St. Thomas, USVI 00803

Counsel for Appellee

Darren John-Baptiste (argued)

The Practice

The Professional Building #1

Fortets Gade Suite B4

St. Thomas, USVI 00802

Counsel for Appellant

L. Theodore Hoppe, Jr.

Hoppe & Martin

423 McFarland Road

Suite 100

Kennett Square, PA 19311

Counsel for Amicus Appellant

OPINION

SMITH, Circuit Judge.

2

The University of the Virgin Islands (“UVI”) charged

Stephen McCauley, a UVI student, with violating provisions of

its Student Code of Conduct (the “Code”) for his alleged

harassment of an individual who had accused his friend of rape.

In response, McCauley filed a 42 U.S.C. § 1983 suit against

UVI; its president, Dr. LaVerne Ragster; and its housing

director, Sean Georges, alleging that various Code provisions

violated the First Amendment. After a bench trial, the District

Court dismissed all claims against UVI because it was not a

“person” for purposes of § 1983, determined that Ragster and

Georges were acting in their official capacities as UVI

employees and were not “persons” for purposes of § 1983, ruled

that one Code provision, Major Infraction Paragraph E, was

facially overbroad in violation of the First Amendment, and

enjoined Ragster and Georges from enforcing the offending

paragraph.

McCauley now appeals the District Court’s (1)

conclusion that UVI, Ragster, and Georges are not “persons” for

purposes of § 1983, (2) conclusion that certain Code provisions

do not violate the First Amendment, and (3) failure to address

his as-applied challenge to Major Infraction Paragraph E, the

Code provision UVI charged him with violating.1

1

The District Court had subject matter jurisdiction under

48 U.S.C. § 1612(a) and 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. § 1291.

3

After reviewing the record, we agree with the District

Court on the first and third issues. UVI is an arm of the

Territory of the Virgin Islands and, therefore, not a “person” for

purposes of § 1983. Ragster and Georges, as employees of UVI

acting in their official capacities, were likewise not “persons”

for purposes of § 1983. Adjudication of McCauley’s as-applied

challenge to Major Infraction Paragraph E was unnecessary

because the District Court had already concluded that the

paragraph was facially unconstitutional. The District Court

went astray, however, in its adjudication of McCauley’s other

challenges to the Code. Setting aside Major Infraction

Paragraph E, two of the four remaining challenged provisions

were unconstitutional infringements on students’ First

Amendment right to free speech. Based on these conclusions

we will affirm the District Court in part and reverse in part.

I.

At all times relevant to this appeal, McCauley was a

student at UVI, Ragster was the president of UVI, and Georges

was the housing director of UVI. During McCauley’s time at

UVI, the Code governed, inter alia, student speech.

On September 30, 2005, McCauley and other UVI

students went to a local beach. Two students who were with

McCauley, Josh Carlson and Jenna Piasecki, broke off from the

group and a sexual act occurred between them. The next day,

Carlson was charged with raping Piasecki. After learning of

4

that charge, McCauley visited Piasecki’s dorm room to talk to

her about the alleged rape. Piasecki complained to UVI officials

after the visit that McCauley harassed her.

Later that month, UVI officials twice warned McCauley

to avoid contact with Piasecki. Georges told McCauley that

Piasecki had complained of harassment and that he should stay

away from her to avoid repercussions under the Code.

McCauley was later approached by other UVI officials and was

warned to avoid all contact with Piasecki. On or about

November 7, 2005, UVI charged McCauley with violating

Major Infraction Paragraph E of the Code and began

disciplinary proceedings against him.2 Major Infraction

Paragraph E prohibits:

Committing, conspiring to commit, or causing to

be committed any act which causes or is likely to

cause serious physical or mental harm or which

tends to injure or actually injures, frightens,

demeans, degrades or disgraces any person. This

includes but is not limited to violation of the

University policies on hazing, sexual harassment

or sexual assault.

2

The Code distinguished between major, general, and

minor infractions. The maximum sanction for each was

expulsion, suspension, and disciplinary probation, respectively.

5

McCauley pled not guilty to the charge.

Shortly after receiving notice of the charge against him,

McCauley filed a § 1983 suit against UVI, Georges, Ragster,

and other unidentified defendants for violating his First

Amendment rights to free speech and freedom of association.

McCauley challenged, inter alia, the constitutionality of Major

Infraction Paragraphs C (“Paragraph C”), E (“Paragraph E”),

and R (“Paragraph R”), General Infraction Paragraph B

(“Paragraph B”), and Minor Infraction Paragraph H (“Paragraph

H”). He alleged that all the paragraphs were facially

unconstitutional and that Paragraph E was unconstitutional as

applied to him.

After McCauley received notice of the charge against

him, he was criminally charged with witness tampering, and

UVI agreed to postpone its disciplinary hearing against him until

the criminal charges were resolved. On March 31, 2009, after

the criminal charges were resolved, UVI sent McCauley a

second notice of charges, which listed the same charges from the

November 2005 notice and added violations of UVI’s drug and

alcohol policy. The second notice stated that the Paragraph E

charge was based on (1) McCauley’s visit to Piasecki’s dorm

room on the day Carlson was charged with rape; (2) an allegedly

harassing phone call McCauley made to Piasecki on October 18,

2005; and (3) McCauley’s alleged harassment of Piasecki at an

off-campus bar on October 20, 2005.

6

On April 28, 2009, McCauley was found guilty of

violating Paragraph E and another paragraph not at issue in this

appeal. As punishment, he was ordered to write a letter of

apology to Piasecki and pay a $200 fine.

The next month, a non-jury trial was conducted on

McCauley’s § 1983 action. On August 21, 2009, the District

Court: dismissed all claims against UVI because it was not a

“person” under § 1983, entered judgment in favor of McCauley

on his facial challenge to Paragraph E, enjoined Ragster, as

president of UVI, and Georges, as housing director of UVI,

from enforcing Paragraph E, and entered judgment in favor of

the defendants on McCauley’s other claims. McCauley filed a

notice of appeal on September 18, 2009.

II.

McCauley asserted facial challenges against Paragraphs

B, C, E, H, and R. At trial, he conceded that he had suffered no

deprivations from Paragraphs B, C, H, and R. For example,

during cross-examination McCauley was asked, “[H]ave you

suffered a deprivation in any way in connection with

[Paragraph] R?” He replied, “no.” McCauley made similar

concessions for the other paragraphs.3

3

For Paragraph B, McCauley admitted that he did not

wish to express himself “in an obscene, lewd, [or] indecent

manner[.]” He also conceded that he did not want to “verbally

7

These concessions raise concerns about McCauley’s

standing to assert the claims alleged in his complaint. Because

“we are required to raise issues of standing sua sponte if such

issues exist,” Addiction Specialists, Inc v. Twp. of Hampton, 411

F.3d 399, 405 (3d Cir. 2005) (internal quotation marks omitted),

before considering the merits of this appeal, we first consider

whether McCauley has standing.4

Our inquiry into Paragraph E is promptly resolved.

McCauley obviously has standing to challenge Paragraph E, as

UVI charged him with violating that paragraph. The other

paragraphs, however, require closer examination. Litigants

asserting facial challenges involving overbreadth under the First

Amendment have standing where “their own rights of free

expression are [not] violated” because “of a judicial prediction

or assumption that the statute’s very existence may cause others

not before the court to refrain from constitutionally protected

speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601,

assault others on [UVI] property.” When McCauley was asked

whether he had “suffered a deprivation of any kind” due to

Paragraph H, he replied “no.” McCauley similarly conceded

that he had not suffered any deprivation in connection with

Paragraph C.

4

“We exercise plenary review of standing issues, but

review the factual elements underlying the District Court’s

determination of standing on a clear error standard.” Goode v.

City of Philadelphia, 539 F.3d 311, 316 (3d Cir. 2008).

8

612 (1973); Pitt News v. Fisher, 215 F.3d 354, 363 (3d Cir.

2000) (“[W]hen a plaintiff attempts to challenge a statute as

being an overbroad restriction on First Amendment rights, the

requirement that an impediment exist to the third party asserting

his or her own rights should be relaxed[.]”) (citing Sec’y of Md.

v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956-57 (1984));

Amato v. Wilentz, 952 F.2d 742, 753 (3d Cir. 1991) (“The

Supreme Court rather freely grants standing to raise overbreadth

claims, on the ground that an overbroad . . . regulation may chill

the expression of others not before the court.”).5

Despite McCauley’s trial testimony that he suffered no

deprivations from Paragraphs B, H, and R, we conclude that he

has standing to challenge those paragraphs. The “judicial

prediction or assumption” that Paragraphs B, H, and R “may

cause others not before the court to refrain from constitutionally

protected speech or expression,” Broadrick, 413 U.S. at 612,

was not disturbed by McCauley’s testimony. Ideally, McCauley

would have responded to questions at trial regarding injury by

5

McCauley’s Complaint explicitly alleges the chilling of

student speech as a harm:

The [Code] has a chilling effect on Plaintiff’s and

other students’ right to freely and openly engage

in appropriate discussions on theories, beliefs,

ideas, and to debate such ideas with persons

holding opposing viewpoints.

9

stating that his speech and the speech of other students was

chilled by the Code. Yet his failure to provide this lawyerly

response is not fatal to his claims, given that we should “freely

grant[] standing to raise overbreadth claims[.]” Amato, 952 F.2d

at 753. Paragraphs B, H, and R, all have the potential to chill

protected speech. Paragraph B prohibits, inter alia, lewd or

indecent conduct. Paragraph H prohibits conduct which causes

emotional distress, including “conduct . . . which compels the

victim to seek assistance in dealing with the distress.”

Paragraph R prohibits misbehavior at sports events, concerts,

and social-cultural events, including the display of unauthorized

or offensive signs. As such, under the “relaxed” rules of

standing for First Amendment overbreadth claims, Pitt News,

215 F.3d at 363, McCauley has standing to assert facial

challenges to those paragraphs.

McCauley lacks standing to challenge Paragraph C,

which requires students to report witnessed violations of Major

Infraction Paragraph B. Paragraph C, and its companion

paragraph, Major Infraction Paragraph B, state:

B. Assault/Infliction or Threat of Bodily

Harm to a Person:

This includes inflicting or

threatening to inflict bodily harm or

coercing or restraining any person

while on or about University

premises. This also includes

10

brandishing of weapons.

C. Aiding and Abetting or Complicity in

Threatening B odily H arm and/or

Committing Bodily Harm to a Person:

This includes conspiring with or

knowingly helping or encouraging

another person to engage in the

a b o v e m e n t i o n e d b e h a v io r

violations [in Major Infraction

Paragraph B]. Students present

during the commission of an act(s)

by another which constitutes those

kinds of behavior violations

mentioned above [in M ajor

Infraction Paragraph B] and who

fail to report such act(s) to the

proper University authorities shall

be guilty of complicity to commit

bodily harm to a person.

At trial, McCauley stated that he and other students were

harmed by the imposition of Paragraph C’s reporting

requirement:

THE COURT: Mr. McCauley, when you

read paragraph C, is there

something you feel you’re

deprived of? And if so, tell

11

us what it is.

[MCCAULEY]: I believe that just because

someone is present when a

violation is being

committed, but does not

report that person, it

basically implies that a

student has to enforce the

provisions of the Code of

Conduct at all times, and I

don’t believ e tha t’s

necessary.

McCauley’s Complaint alleges that Paragraph C requires

“students place themselves in harms-way by being compelled to

act as snitches for the University[.]”

Unlike the other challenged paragraphs, which punish

speech, the injury from Paragraph C identified by McCauley is

grounded in having to report violations of Major Infraction

Paragraph B. Paragraph C’s reporting requirement does not

prohibit speech so there is no risk that it “may cause others not

before the court to refrain from constitutionally protected speech

or expression.” Broadrick, 413 U.S. at 612. Therefore, we will

remand the facial challenge to Paragraph C to the District Court

12

for dismissal for lack of standing.6

III.

McCauley’s first challenge is to the District Court’s

conclusion that UVI, Georges, and Ragster were not “persons”

for the purposes of § 1983.7 Although the caption of

McCauley’s Complaint purports to sue Georges and Ragster in

their official and individual capacities, it does not allege that

either individual committed any wrongful acts in their individual

capacities nor did the evidence at trial reveal any such wrongful

acts. Accordingly, any § 1983 claim asserted against Georges

and Ragster must be based on their official actions as UVI

employees and turns on whether UVI is an instrumentality of the

Virgin Islands.

Territories and their officers, acting in their official

6

In so doing, we do not rule out the possibility that a

plaintiff alleging a different injury could have standing to assert

a facial overbreadth challenge to Paragraph C, nor do we imply

anything about the constitutionality of Paragraph C.

7

We exercise plenary review over legal questions and

review factual findings for clear error. United States v. Schiff,

602 F.3d 152, 160 (3d Cir. 2010); Lieberman v. Cambridge

Partners, LLC, 432 F.3d 482, 486 (3d Cir. 2005) (stating that we

exercise plenary review over questions of statutory

construction).

13

capacities, are not “persons” under § 1983. Ngiraingas v.

Sanchez, 495 U.S. 182, 191-92 (1990); Brow v. Farrelly, 994

F.2d 1027, 1037 (3d Cir. 1993) (“[N]either the Territory of the

Virgin Islands nor its officers acting in their official capacities

are ‘persons’ under 42 U.S.C. § 1983.”). To determine whether

UVI was an instrumentality of the Territory of the Virgin

Islands, and therefore not a “person” for purposes of § 1983, we

look to the factors set forth in Fitchik v. N.J. Transit Rail

Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (en banc).

Although the Fitchik factors were initially intended to determine

Eleventh Amendment immunity, our Court has extended their

use to § 1983. Callahan v. City of Philadelphia, 207 F.3d 668,

670 (3d Cir. 2000).

We analyze three factors in applying the Fitchik test: “(1)

the source of the money that would pay the judgment (i.e.,

whether that source would be the state); (2) the status of the

entity under state law; and (3) the degree of autonomy the entity

has.” Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239 (3d

Cir. 2005). The three factors should be treated as “co-equal[s]”

in the analysis. Id. at 240.

McCauley argues that the District Court’s analysis of the

Fitchik factors was “inconclusive” and that, as a result, it should

have focused on the first Fitchik factor, whether a judgment

against UVI would have affected the Virgin Islands treasury.

This argument fails. First, McCauley’s assertion that the

District Court’s analysis of the Fitchik factors was

14

“inconclusive” is belied by the record. The District Court, after

an exhaustive analysis of each factor, determined that two of the

three factors weighed in favor of UVI being an arm of the

Territory: UVI’s status under Virgin Islands law and its level of

autonomy. Only the funding factor weighed slightly against the

conclusion that UVI was an arm of the Territory. McCauley

does not challenge any of the District Court’s exhaustive

underlying fact-finding or legal reasoning and we decline to

speculate as to what motivated his accusation that the District

Court’s analysis was “inconclusive.” In short, we see no error

in the District Court’s application of the Fitchik factors.

Second, McCauley erroneously urges us to place additional

weight on the source of funding. Each Fitchik factor should be

treated as a “co-equal.” Benn, 426 F.3d at 240; Cooper v.

Southeastern Pa. Transp. Auth., 548 F.3d 296, 301-02 (3d Cir.

2008); Bowers v. Nat’l Collegiate Athletic Ass’n., 475 F.3d 524,

546 (3d Cir. 2007). Thus, the District Court’s conclusion that

UVI was an arm of the Territory and not a “person” for purposes

of § 1983, was sound.

Because UVI is an arm of the Territory, Georges and

Ragster, in their official capacities at UVI, were likewise not

persons under § 1983. Ngiraingas, 495 U.S. at 192; Brow, 994

F.2d at 1037. “[A] suit against a state official in his or her

official capacity is not a suit against the official but rather is a

suit against the official’s office.” Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989). “As such, it is no different from

a suit against the State itself.” Id. Accordingly, McCauley

15

cannot seek money damages against them. He may only seek

prospective injunctive relief. Id. n.10; see Brow, 994 F.2d at

1037 n.12 (noting that we cannot rule out the possibility of

“section 1983 actions for prospective injunctive relief against

territorial officials in their official capacities”).

IV.

Having disposed of the threshold questions of standing

and whether UVI, Georges, and Ragster are “persons” for

purposes of § 1983, we turn to the core of this appeal—the

application of the First Amendment overbreadth doctrine to

the challenged Code paragraphs.8 We begin by outlining the

basics of the overbreadth doctrine, and then turn to applying

the doctrine to Paragraphs R, H, and B.

A.

The First Amendment overbreadth doctrine states that:

8

We exercise plenary review over legal questions

pertaining to the First Amendment. See Schiff, 602 F.3d at 160.

“Although we generally review a district court’s factual findings

for clear error, [i]n the First Amendment context, reviewing

courts have a duty to engage in a searching, independent factual

review of the full record.” ACLU v. Mukasey, 534 F.3d 181,

186 (3d Cir. 2008) (internal quotation marks omitted).

16

A regulation of speech may be struck down on its

face if its prohibitions are sufficiently

overbroad—that is, if it reaches too much

expression that is protected by the Constitution.

[A] policy can be found unconstitutionally

overbroad if “there is a ‘likelihood that the

statute’s very existence will inhibit free

expression’” to a substantial extent.

Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243,

258 (3d Cir. 2002) (footnote omitted). “[C]ourts will not strike

down a regulation as overbroad unless the overbreadth is

‘substantial in relation to the [regulation’s] plainly legitimate

sweep.’” Id. at 259 (quoting Broadrick, 413 U.S. at 615). We

“vigorously enforce[] the requirement that a statute’s

overbreadth be substantial, not only in an absolute sense, but

also relative to the statute’s plainly legitimate sweep” in an

attempt to “strike a balance between competing social costs”:

On the one hand, the threat of enforcement of an

overbroad law deters people from engaging in

constitutionally protected speech, inhibiting the

free exchange of ideas. On the other hand,

invalidating a law that in some of its applications

is perfectly constitutional . . . has obvious harmful

effects.

United States v. Williams, 553 U.S. 285, 292 (2008) (emphasis

in original). “[T]he overbreadth doctrine is not casually

17

employed.” Los Angeles Police Dep’t v. United Reporting

Publ’g Corp., 528 U.S. 32, 39 (1999). “Because of the

wide-reaching effects of striking down a statute on its face . . .

we have recognized that the overbreadth doctrine is strong

medicine and have employed it with hesitation, and then only as

a last resort.” Id. (internal quotation marks omitted).

“The first step in overbreadth analysis is to construe the

challenged statute; it is impossible to determine whether a

statute reaches too far without first knowing what the statute

covers.” Williams, 553 U.S. at 293. The next step is to

determine “whether the statute, as we have construed it,

[pen]alizes a substantial amount of protected expressive

activity.” Id. at 297. Before striking down a policy as

overbroad, we must determine whether there is any “reasonable

limiting construction . . . that would render the policy

constitutional.” Sypniewski, 307 F.3d at 259. “Every reasonable

construction must be resorted to, in order to save a statute from

unconstitutionality.” Id. (internal quotation marks omitted).

B.

Our application of the overbreadth doctrine in this case

is informed by the “critical importance” free speech has in our

public universities:

[O]n public university campuses throughout this

country, . . . free speech is of critical importance

18

because it is the lifeblood of academic freedom.

As the Supreme Court in Healy v. James

explained, “the precedents of this Court leave no

room for the view that, because of the

acknowledged need for order, First Amendment

protections should apply with less force on

college campuses than in the community at large.

Quite to the contrary, ‘the vigilant protection of

constitutional freedoms is nowhere more vital

than in the community of American schools.’”

DeJohn v. Temple Univ., 537 F.3d 301, 314 (3d Cir. 2008)

(quoting Healy v. James, 408 U.S. 169, 180 (1972)).9 “It is well

recognized that [t]he college classroom with its surrounding

9

Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957);

Keyishian v. Bd. of Regents of the Univ. of N.Y., 385 U.S. 589,

603 (1967) (“Our Nation is deeply committed to safeguarding

academic freedom, which is of transcendent value to all of us[,]

. . . [t]hat freedom is therefore a special concern of the First

Amendment, which does not tolerate laws that cast a pall of

orthodoxy over the classroom.”); Healy, 408 U.S. at 180; see

Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S.

819, 835 (1995) (stating that the university has a “background

and tradition of thought and experiment that is at the center of

our intellectual and philosophic tradition”); Papish v. Bd. of

Curators of Univ. of Mo., 410 U.S. 667, 671 (1973) (per curiam)

(stating that “the First Amendment leaves no room for the

operation of a dual standard in the academic community with

respect to the content of speech”).

19

environs is peculiarly the marketplace of ideas[,] and [t]he First

Amendment guarantees wide freedom in matters of adult public

discourse.” Id. at 315 (citations and internal quotation marks

omitted).

Indeed, for this reason, and several others we will

elaborate on, our Circuit recognizes that “there is a difference

between the extent that a school may regulate student speech in

a public university setting as opposed to that of a public

elementary or high school.” Id. at 315. Public university

“administrators are granted less leeway in regulating student

speech than are public elementary or high school

administrators.” Id. at 316 (emphasis in original). “Discussion

by adult students in a college classroom should not be

restricted,” id. at 315, based solely on rationales propounded

specifically for the restriction of speech in public elementary

and high schools, see id. Cf. Sypniewski, 307 F.3d at 260.

“Certain speech . . . which cannot be prohibited to adults may be

prohibited to public elementary and high school students.”

DeJohn, 537 F.3d at 315 (emphasis in original); cf. Healy, 408

U.S. at 180.

We reach this conclusion in light of the differing

pedagogical goals of each institution, the in loco parentis role of

public elementary and high school administrators, the special

needs of school discipline in public elementary and high

schools, the maturity of the students, and, finally, the fact that

many university students reside on campus and thus are subject

20

to university rules at almost all times.

First, the pedagogical missions of public universities and

public elementary and high schools are undeniably different.

While both seek to impart knowledge, the former encourages

inquiry and challenging a priori assumptions whereas the latter

prioritizes the inculcation of societal values. Public universities

encourage teachers and students to launch new inquiries into our

understanding of the world. See Sweezy, 354 U.S. at 250; e.g.,

Tilton v. Richardson, 403 U.S. 672, 686 (1971) (“Many

church-related colleges and universities are characterized by a

high degree of academic freedom and seek to evoke free and

critical responses from their students.”) (plurality opinion). The

university atmosphere of speculation, experiment, and creation

is essential to the quality of higher education. Our public

universities require great latitude in expression and inquiry to

flourish:

To impose any strait jacket upon the intellectual

leaders in our colleges and universities would

imperil the future of our Nation. No field of

education is so thoroughly comprehended by man

that new discoveries cannot yet be made.

Particularly is that true in the social sciences,

where few, if any, principles are accepted as

absolutes. Scholarship cannot flourish in an

atmosphere of suspicion and distrust. Teachers

and students must always remain free to inquire,

to study and to evaluate, to gain new maturity and

21

understanding; otherwise our civilization will

stagnate and die.

Sweezy, 354 U.S. at 250. Free speech “is the lifeblood of

academic freedom.” DeJohn, 537 F.3d at 314. Public

elementary and high schools, on the other hand, are tasked with

inculcating a “child [with] cultural values, [to] prepar[e] him for

later professional training, and [to] help[] him to adjust normally

to his environment.” Brown v. Bd. of Educ., 347 U.S. 483, 493

(1954); see Ambach v. Norwick, 441 U.S. 68, 76-79 (1979).

“The process of educating our youth for citizenship in public

schools is not confined to books, the curriculum, and the civics

class; schools must teach by example the shared values of a

civilized social order.” Bethel Sch. Dist. No. 403 v. Fraser, 478

U.S. 675, 683 (1986). As a result, “teachers—and indeed the

older students—[must] demonstrate the appropriate form of civil

discourse and political expression by their conduct and

deportment in and out of class.” Id. School attendance exposes

students to “role models” who are to provide “essential lessons

of civil, mature conduct.” Id. Public elementary and high

school education is as much about learning how to be a good

citizen as it is about multiplication tables and United States

history.

Second, “public elementary and high school

administrators,” unlike their counterparts at public universities,

“have the unique responsibility to act in loco parentis.” DeJohn,

537 F.3d at 315; e.g., Fraser, 478 U.S. at 684 (recognizing “the

22

obvious concern on the part of . . . school authorities acting in

loco parentis, to protect children—especially in a captive

audience—from exposure to sexually explicit, indecent, or lewd

speech”).10 For example, the Sypniewski Court noted that New

Jersey law required school authorities to “hold every pupil

accountable for disorderly conduct” in school. Sypniewski, 307

F.3d at 259 (quoting N.J. Stat. § 18A:25-2). A similar statute

exists in every jurisdiction in our Circuit. E.g., Del. Code tit. 14,

§ 701; 24 Pa. Stat. § 13-1317; N.J. Stat. § 18A:25-2; V.I. Code

tit. 17, § 130. “Because of the duties and responsibilities of

public elementary and [high] schools, the overbreadth doctrine

warrants a more hesitant application in th[ose] setting[s] than in

other contexts.” Sypniewski, 307 F.3d at 259. “[B]road

authority to control the conduct of [public elementary and high

school] students granted to school officials permits a good deal

of latitude in determining which policies will best serve

educational and disciplinary goals.” Id. at 260; accord Fraser,

478 U.S. at 684-86.

Public university administrators, officials, and professors

do not hold the same power over students. The authoritarian

10

We recognize that this in loco parentis relationship has

been diluted over time. See, e.g., Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (explaining that

“First Amendment rights, applied in light of the special

characteristics of the school environment, are available to . . .

students”); New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

23

college education of old, described in Justice Thomas’s

concurrence in Frederick v. Morse, 551 U.S. 393 (2007), has

long since been put to rest. Justice Thomas explained that in the

colonial era:

Even at the college level, strict obedience was

required of students: “The English model fostered

absolute institutional control of students by

faculty both inside and outside the classroom. At

all the early American schools, students lived and

worked under a vast array of rules and

restrictions. This one-sided relationship between

the student and the college mirrored the situation

at English schools where the emphasis on

hierarchical authority stemmed from medieval

Christian theology and the unique legal privileges

afforded the university corporation.”

Id. at 412 n.2 (Thomas, J., concurring) (quoting Note, The

Lingering Legacy of In Loco Parentis: An Historical Survey and

Proposal for Reform, 44 Vand. L. Rev. 1135, 1140 (1991)

(footnote omitted)). The public university has evolved into a

vastly different creature. Modern-day public universities are

intended to function as marketplaces of ideas, where students

interact with each other and with their professors in a

collaborative learning environment. Indeed, students “often

have values, views, and ideologies that are at war with the ones

which the college has traditionally espoused or indoctrinated,”

Healy, 408 U.S. at 197 (Douglas, J., concurring). This is a far

24

cry from the “one-sided relationship,” Morse, 551 U.S. at 412

n.2 (Thomas, J., concurring), that once existed.

Over thirty years ago, in Bradshaw v. Rawlings, 612 F.2d

135 (3d Cir. 1979), we recognized that “[w]hatever may have

been its responsibility in an earlier era, the authoritarian role of

today’s college administrations has been notably diluted”:

Trustees, administrators, and faculties have been

required to yield to the expanding rights and

privileges of their students. By constitutional

amendment, written and unwritten law, and

through the evolution of new customs, rights

formerly possessed by college administrations

have been transferred to students. College

students today are no longer minors; they are now

regarded as adults in almost every phase of

community life. . . . . [E]ighteen year old

students are now identified with an expansive

bundle of individual and social interests and

possess discrete rights not held by college

students from decades past. There was a time

when college administrators and faculties

assumed a role In loco parentis. Students were

committed to their charge because the students

were considered minors. A special relationship

was created between college and student that

imposed a duty on the college to exercise control

over student conduct and, reciprocally, gave the

students certain rights of protection by the

25

college. The campus revolutions of the late

sixties and early seventies were a direct attack by

the students on rigid controls by the colleges and

were an all-pervasive affirmative demand for

more student rights. In general, the students

succeeded, peaceably and otherwise, in acquiring

a new status at colleges throughout the country.

These movements, taking place almost

simultaneously with legislation and case law

lowering the age of majority, produced

fundamental changes in our society. A dramatic

reapportionment of responsibilities and social

interests of general security took place.

Regulation by the college of student life on and

off campus has become limited. Adult students

now demand and receive expanded rights of

privacy in their college life including, for

example, liberal, if not unlimited, partial visiting

hours. College administrators no longer control

the broad arena of general morals. At one time,

exercising their rights and duties In loco parentis,

colleges were able to impose strict regulations.

But today students vigorously claim the right to

define and regulate their own lives. Especially

have they demanded and received satisfaction of

their interest in self-assertion in both physical and

mental activities, and have vindicated what may

be called the interest in freedom of the individual

will.

Id. at 138-40 (footnotes omitted). The idea that public

26

universities exercise strict control over students via an in loco

parentis relationship has decayed to the point of irrelevance.

See Guest v. Hansen, 603 F.3d 15, 21 (2d Cir. 2010) (stating

that, under New York law, colleges do not act in loco parentis);

Freeman v. Busch, 349 F.3d 582, 587 (8th Cir. 2003) (“[S]ince

the late 1970s, the general rule is that no special relationship

exists between a college and its own students because a college

is not an insurer of the safety of its students.”) (emphasis

omitted).

Closely related to the in loco parentis issue is the third

observation, that public elementary and high schools must be

empowered to address the “special needs of school discipline”

unique to those environs. DeJohn, 537 F.3d at 315-16. In

T.L.O., the Supreme Court, in discussing the scope of a public

high school student’s Fourth Amendment rights, stated that

teachers and administrators in public high schools have a

substantial interest in “maintaining discipline in the classroom

and on school grounds”: “Maintaining order in the classroom

has never been easy, but in recent years, school disorder has

often taken particularly ugly forms: drug use and violent crime

in the schools have become major social problems.” T.L.O., 469

U.S. at 339; e.g., Hedges v. Musco, 204 F.3d 109, 112-15 (3d

Cir. 2000) (involving student accused of drug use). The

Supreme Court explicitly recognized that in a high school, “a

proper educational environment requires . . . the enforcement of

rules against conduct that would be perfectly permissible if

undertaken by an adult.” T.L.O., 469 U.S. at 339. “Compulsory

27

attendance laws automatically inhibit the liberty interest

afforded public school students, as the law compels students to

attend school in the first place [and] [o]nce under the control of

the school, students’ movement and location are subject to the

ordering and direction of teachers and administrators.” Shuman

v. Penn Manor Sch. Dist., 422 F.3d 141, 149 (3d Cir. 2005)

(internal citations and quotation marks omitted). Unlike the

strictly controlled, smaller environments of public elementary

and high schools, where a student’s course schedule, class times,

lunch time, and curriculum are determined by school

administrators, public universities operate in a manner that gives

students great latitude: for example, university students routinely

(and unwisely) skip class; they are often entrusted to responsibly

use laptops in the classroom; they bring snacks and drinks into

class; and they choose their own classes.11 In short, public

university students are given opportunities to acquit themselves

as adults. Those same opportunities are not afforded to public

elementary and high school students.

11

It would be naive to assume that drug use and violent

crime are not issues in our public universities; that is not our

contention. Instead, we note that the concept of maintaining

discipline in a public university classroom is markedly different

from elementary and high school classrooms. In general, there

is no educational component to discipline in a university setting.

There is no demerit system for bad behavior or reward for good

behavior in the classroom. Nor is there a “conduct” grade on a

public university student’s grade report at the end of each term.

28

Fourth, public elementary and high school administrators

“must be able to take into account the emotional maturity of the

intended audience in determining whether to disseminate student

speech on potentially sensitive topics, which might range from

the existence of Santa Claus in an elementary school setting to

the particulars of teenage sexual activity in a high school

setting.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272

(1988); see, e.g., Fraser, 478 U.S. at 683 (noting concern that

“[t]he speech [at issue] could well be seriously damaging to its

less mature audience”); accord Lee v. Weisman, 505 U.S. 577,

592 (1992) (“[T]here are heightened concerns with protecting

freedom of conscience from subtle coercive pressure in the

elementary and secondary public schools.”). Considerations of

maturity are not nearly as important for university students, most

of whom are already over the age of 18 and entrusted with a

panoply of rights and responsibilities as legal adults. E.g., U.S.

Const. amend. XXVI; Restatement (Second) of Contracts §§ 12,

14 (1981) (explaining limited contractual capacity of “infants”);

Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that

individuals may not be given the death penalty for crimes they

committed while under the age of 18). “University students are

. . . young adults [and] are less impressionable than younger

students[.]” Widmar v. Vincent, 454 U.S 263, 274 n.14 (1981);

e.g., Tilton, 403 U.S. at 686 (“There is substance to the

contention that college students are less impressionable and less

susceptible to religious indoctrination.”).

Moreover, research has confirmed the common sense

29

observation that younger members of our society, children and

teens, lack the maturity found in adults. The Supreme Court has

recognized, albeit while discussing juvenile offenders, that

“scientific and sociological studies . . . tend to confirm, [a] lack

of maturity and an underdeveloped sense of responsibility are

found in youth more often than in adults.” Roper, 543 U.S. at

569 (internal quotation marks omitted). “These qualities often

result in impetuous and ill-considered actions and decisions.”

Id. (internal quotation marks omitted). “[A]dolescents are

overrepresented statistically in virtually every category of

reckless behavior.” Id. (internal quotation marks omitted). In

addition, “juveniles are more vulnerable or susceptible to

negative influences and outside pressures, including peer

pressure,” id., and “the character of a juvenile is not as well

formed as that of an adult,” id. at 570. These conclusions were

recently re-affirmed in Graham v. Florida, No. 08-7412, 560

U.S. __ (May 17, 2010), where the Supreme Court stated that

“[n]o recent data provide reason to reconsider [its] observations

in Roper about the nature of juveniles.” Id., slip. op. at 17.

Finally, university students, unlike public elementary and

high school students, often reside in dormitories on campus, so

they remain subject to university rules at almost all hours of the

day. The concept of the “schoolhouse gate,” Tinker, 393 U.S.

at 506, and the idea that students may lose some aspects of their

First Amendment right to freedom of speech while in school, id.

at 507, does not translate well to an environment where the

student is constantly within the confines of the schoolhouse.

30

“Under our Constitution, free speech is not a right that is given

only to be so circumscribed that it exists in principle but not in

fact.” Id. at 513. Yet this is exactly what would occur for

students residing on university campuses were we to grant

public university administrators the speech-prohibiting power

afforded to public elementary and high school administrators.

Those students would constantly be subject to a circumscription

of their free speech rights due to university rules.

The reasons we have provided are by no means

exhaustive, but they are consistent with the view we espoused in

DeJohn, 537 F.3d at 315-16, and Sypniewski, 307 F.3d at 260.

Public universities have significantly less leeway in regulating

student speech than public elementary or high schools.

Admittedly, it is difficult to explain how this principle should be

applied in practice and it is unlikely that any broad categorical

rules will emerge from its application. At a minimum, the

teachings of Tinker, Fraser, Hazelwood, Morse, and other

decisions involving speech in public elementary and high

schools, cannot be taken as gospel in cases involving public

universities. Any application of free speech doctrine derived

from these decisions to the university setting should be

scrutinized carefully, with an emphasis on the underlying

reasoning of the rule to be applied.

V.

Applying the overbreadth doctrine to Paragraphs R, H,

31

and B, the first two paragraphs fail to pass constitutional muster.

The last paragraph has a limited construction that would render

it constitutional. Each challenged provision is discussed in turn.

A.

McCauley challenges Paragraph R, which states:

R. Misbehavior at Sports Events, Concerts,

and Social-Cultural Events:

(1) The throwing of any article

into a crowd or onto a

playing field, court, or a

stage.

(2) Alcoholic beverages of all

kinds are prohibited at

University sponsored events

unless permitted by

a p p ro p ria te U n iv e rsity

officials.

(3) Displaying in the Field

House, softball field, soccer

field, cafeteria and

Reichhold Center for the

Arts any unauthorized or

obsc ene, of f ensive or

obstructive sign.

32

McCauley focuses his challenge on subsection (3), which states

that a student may be punished for, inter alia, displaying any

obscene, unauthorized, or offensive sign in certain locations.

The District Court reasoned that the banning of obscene

messages was justified under Fraser, and that the banning of

unauthorized or offensive signs was justified under Hazelwood.

While we agree with the District Court that the banning

of obscene messages is not violative of the First Amendment,

we do so on different grounds. The reasoning underlying the

Fraser decision is simply inapposite. The Fraser Court

emphasized the nature of the school and the audience—a public

high school and impressionable teens. E.g., Fraser, 478 U.S. at

683 (“The speech could well be seriously damaging to its less

mature audience, many of whom were only 14 years old and on

the threshold of awareness of human sexuality.”). According to

the Supreme Court, the high school needed to “disassociate

itself [from the offending student’s speech] to make the point to

the pupils that vulgar speech and lewd conduct is wholly

inconsistent with the ‘fundamental values’ of public school

education.” Id. at 685-86. This interest in inculcating

fundamental values is not a priority in public universities. See

supra Part IV.B. Indeed, the Fraser Court recognized as much

when it noted that, in contrast to high school students, adults are

permitted to engage in “highly offensive” speech in certain

circumstances. Id. at 682 (citing Cohen v. California, 403 U.S.

15 (1971)).

33

The age and maturity of the listener was a primary

concern of the Fraser Court. As support for its holding, the

Fraser Court looked to First Amendment jurisprudence outside

the context of schools that focused on the age of the listener to

show that there are “limitations on the otherwise absolute

interest of the speaker in reaching an unlimited audience where

the speech is sexually explicit and the audience may include

children.” Fraser, 478 U.S. at 684 (citing Ginsburg v. New

York, 390 U.S. 629, 637 (1968) (upholding statute banning sale

of sexually oriented material to minors, even though the material

was protected under the First Amendment for adults)). The

Supreme Court also noted that society had “an interest in

protecting minors from exposure to vulgar and offensive spoken

language.” Fraser, 478 U.S. at 684 (citing FCC v. Pacifica

Foundation, 438 U.S. 726, 729 (1978)). The desire to protect

the listener cannot be convincingly trumpeted as a basis for

censoring speech for university students. Ultimately, these

machinations over the applicability of Fraser are unnecessary.

Obscenity is not protected by the First Amendment in any

context. See generally Miller v. California, 413 U.S. 15 (1973);

Roth v. United States, 354 U.S. 476 (1957). Thus, Paragraph

R’s banning of obscene speech is constitutionally sound,

regardless of Fraser.

The District Court’s reliance on Hazelwood to justify

Paragraph R’s punishment of “offensive” or “unauthorized”

signs fails on both fronts. First, Paragraph R’s use of

“offensive” is, “on its face, sufficiently broad and subjective that

34

[it] could conceivably be applied to cover any speech . . . th[at]

offends someone.” DeJohn, 537 F.3d at 317 (internal quotation

marks omitted). “Absent any requirement akin to a showing of

severity or pervasiveness—that is, a requirement that the

conduct objectively and subjectively creates a hostile

environment or substantially interferes with an individual’s

work [or study]—[Paragraph R] provides no shelter for core

protected speech.” Id. at 317-18. “[T]he mere dissemination of

ideas—no matter how offensive to good taste—on a state

university campus may not be shut off in the name alone of

‘conventions of decency.’” Papish, 410 U.S. at 670; see Tinker,

393 U.S. at 509 (stating that “mere desire to avoid the

discomfort and unpleasantness that always accompany an

unpopular viewpoint” is insufficient to justify prohibition of a

particular expression of opinion); Sypniewski, 307 F.3d at 259

n.16 (noting that “mere offensiveness does not qualify as

‘disruptive’ speech”); Saxe v. State College Area Sch. Dist., 240

F.3d 200, 215 (3d Cir. 2001). Second, the Hazelwood decision

does not speak to the issue of authorization. Neither UVI nor

McCauley discuss what procedures must be followed for a sign

to be “authorized” and the University Student Handbook does

not contain any procedures for authorization. Based on the

record before us, Paragraph R’s authorization requirement lacks

any criteria for determining whether authorization should be

granted and, thus, permits arbitrary, unpredictable enforcement

that is violative of the First Amendment. Cf. Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 150-51 (1969) (“[A] law

subjecting the exercise of First Amendment freedoms to the

35

prior restraint of a license, without narrow, objective, and

definite standards to guide the licensing authority is

unconstitutional.”).

Overlooking the fatal flaws of attempting to prohibit

“offensive” speech and requiring authorization for signs yet

providing no means for receiving authorization, and assuming

that Hazelwood applies in the university setting, the District

Court erroneously applied that precedent. While the District

Court correctly noted that “Hazelwood’s permissive ‘legitimate

pedagogical concern’ test governs only when a student’s school-

sponsored speech could reasonably be viewed as speech of the

school itself,” Saxe, 240 F.3d at 213-14, and that “school

‘sponsorship’ of student speech is not lightly to be presumed,”

id. at 214, it then determined, despite UVI’s failure to raise the

issue, that the displaying of signs by students in the Field House,

softball field, soccer field, cafeteria, or Reichhold Center for the

Arts may reasonably be viewed as UVI’s speech. It further

concluded that Paragraph R was reasonably related to legitimate

pedagogical concerns.

Neither of these determinations was supported by the

facts or legal authority. Logic suggests that the District Court’s

assumption that signs displayed during sporting events, concerts,

and social-cultural events at the locations listed in Paragraph R

could be construed as school-sponsored speech was incorrect.

The more offensive or outlandish a sign is, the less likely it is

that people would attribute it to UVI. For example, in Morse,

36

the Supreme Court summarily dismissed the application of

Hazelwood in a case involving a banner displaying the

nonsensical phrase: “BONG HiTS 4 JESUS,” Morse, 551 U.S.

at 397. Id. at 405. It did so because “no one would reasonably

believe that [the] banner bore the school’s imprimatur.” Id.

Similar reasoning would apply to offensive signs displayed by

UVI students. Indeed, the signs perhaps most likely to be

prohibited, those containing socially-valueless, extremely

offensive speech, would be the least likely to be seen as bearing

UVI’s imprimatur. See id. The District Court also assumed that

controlling the signs displayed at the locations identified in

Paragraph R served a legitimate pedagogical concern. The

record does not establish this determination and an assertion,

without any analysis, is simply not enough.12

There is no limiting, constitutional construction for

Paragraph R. The lack of any procedures explaining how signs

may be authorized for display is a procedural failure that is not

susceptible to a constitutional construction and the ban on

“offensive” signs is hopelessly ambiguous and subjective, see

DeJohn, 537 F.3d at 317-18. Paragraph R’s prohibition on

“obscene” speech is unproblematic, but the deficiencies in the

paragraph overwhelm the legitimacy of the ban on such speech.

12

In reaching our conclusion today, we decline to

consider whether the teachings of Hazelwood apply in the

university setting or whether Hazelwood is limited to curricular

activities.

37

Its prohibitions on “offensive” and “unauthorized” speech have

no plainly legitimate sweep and may be used to arbitrarily

silence protected speech. See Sypniewski, 307 F.3d at 259. As

such, we conclude that the paragraph is facially overbroad in

violation of the First Amendment.

B.

McCauley also challenges Paragraph H, which states:

H. Conduct Which Causes Emotional

Distress:

This includes conduct which results

i n p h ys ic a l m a n if es ta tio n s ,

significant restraints on normal

behavior or conduct and/or which

compels the victim to seek

assistance in dealing with the

distress.

The District Court concluded that because Paragraph H restricts

speech that causes extreme reactions, such as “physical

manifestations,” it covered only speech that significantly

interfered with the rights of others at UVI. As such, the District

Court held that the paragraph was lawful under Tinker.

“Conduct” is a broad term that encompasses all “personal

behavior” of a student. Merriam-Webster’s Collegiate

38

Dictionary 259 (11th ed. 2003). Speech protected by the First

Amendment is a type of “conduct,” as it is a personal behavior,

and is therefore regulated by Paragraph H. Notably, the

paragraph also regulates other conduct, such as “non-expressive,

physically harassing conduct [that] is entirely outside the ambit

of the free speech clause.” Saxe, 240 F.3d at 206.

Paragraph H, like Paragraph R, is entirely subjective and

provides no shelter for core protected speech. See DeJohn, 537

F.3d at 317-18. “Emotional distress” is a very loose concept.

The term “emotion” can mean anything from simply “a state of

feeling,” Merriam-Webster’s Collegiate Dictionary 408, to “a

conscious mental reaction (as anger or fear) subjectively

experienced as strong feeling,” id. The term “distress” similarly

could connote an exceedingly minimal threshold of harm, as in

“to cause to worry or be troubled,” id. at 364, but it can also be

defined as requiring more, such as “pain or suffering affecting

the body, a bodily part, or the mind,” id. Even taking a narrow

understanding of “emotional distress,” it is clear that the term is

driven by the subjective experience of the individual. See id.

(defining “distress”).13 The best example of the subjectivity is

13

Attempts at connecting Paragraph H to a legal

definition of “emotional distress” fail. The Virgin Islands

recognize intentional infliction of emotional distress, e.g. Louis

v. Caneel Bay, Inc., 50 V.I. 7, 20 (V.I. Super. Ct. 2008), but the

“[e]xtreme and [o]utrageous conduct,” id. (quoting Restatement

(Second) of Torts § 46(1)), necessary to assert such a claim does

39

the last prong of the paragraph—“conduct . . . which compels

the victim to seek assistance in dealing with the distress.” This

prong prohibits speech without any regard for whether the

speech is objectively problematic. The fact that the provision

only lists a few non-exclusive examples of when it may be

invoked does not help its case for constitutionality. Emotional

distress for purposes of Paragraph H “includes” the examples

listed in the paragraph, but it also includes other scenarios that

are not illustrated in the paragraph.

The scenarios in which this prong may be implicated are

endless: a religious student organization inviting an atheist to

attend a group prayer meeting on campus could prompt him to

seek assistance in dealing with the distress of being invited to

the event; minority students may feel emotional distress when

other students protest against affirmative action; a pro-life

not bear any clear relationship to free speech. Not all extreme

and outrageous conduct involving speech is necessarily

unprotected by the First Amendment. Moreover, the tort of

intentional infliction of emotional distress requires intent on the

part of the tortfeasor. Id. No such intent element is required

under Paragraph H. The Virgin Islands also recognize negligent

infliction of emotional distress, e.g., Fenton v. C&C Constr. &

Maint., Inc., 48 V.I. 263, 276 (V.I. Super. Ct. 2007), but that tort

requires the plaintiff have been in danger and have suffered

some physical harm as a result of the emotional distress. Id. No

similar requirements exist for Paragraph H.

40

student may feel emotional distress when a pro-choice student

distributes Planned Parenthood pamphlets on campus; even

simple name-calling could be punished. The reason all these

scenarios are plausible applications of Paragraph H is that the

paragraph is not based on the speech at all. It is based on a

listener’s reaction to the speech. “The Supreme Court has held

time and again, both within and outside of the school context,

that the mere fact that someone might take offense at the content

of speech is not sufficient justification for prohibiting it.” Saxe,

240 F.3d at 215; see Papish, 410 U.S. at 670; Tinker, 393 U.S.

at 509; Sypniewski, 307 F.3d at 259 n.16. While “[t]he precise

scope of Tinker’s ‘interference with the rights of others’

language is unclear” it is “certainly not enough that the speech

is merely offensive to some listener.” Saxe, 240 F.3d at 217.

Also, the Tinker doctrine may only be invoked to address

“substantial disruption[s] of or material interference with school

activities[.]” Tinker, 393 U.S. at 514. Here, a lone individual

who has a negative reaction may subject the speaker to

disciplinary proceedings. That simply was not what was

envisioned in Tinker:

[I]n our system, undifferentiated fear or

apprehension of disturbance is not enough to

overcome the right to freedom of expression.

Any departure from absolute regimentation may

cause trouble. Any variation from the majority’s

opinion may inspire fear. Any word spoken, in

41

class, in the lunchroom, or on the campus, that

deviates from the views of another person may

start an argument or cause a disturbance. But our

Constitution says we must take this risk,

Terminiello v. Chicago, 337 U.S. 1 (1949); and

our history says that it is this sort of hazardous

freedom—this kind of openness—that is the basis

of our national strength and of the independence

and vigor of Americans who grow up and live in

this relatively permissive, often disputatious,

society.

Id. at 508-09.

Given that Paragraph H may be used to punish any

protected speech, without forewarning, based on the subjective

reaction of the listener, we conclude that its overbreadth is

substantial in an absolute sense and relative to its plainly

legitimate sweep. In doing so, we do not deny that there are

instances where Paragraph H may be invoked and the First

Amendment is not implicated: for example, where a student

engages in “non-expressive, physically harassing conduct,”

Saxe, 240 F.3d at 206, that causes emotional distress, or where

a student engages in obscene speech that causes emotional

distress, see generally Miller, 413 U.S. 15; Roth, 354 U.S. 476.

But the blanket chilling of all protected speech is still substantial

in relation to these other types of conduct that may be prohibited

under the paragraph. Every word spoken by a student on

campus is subject to Paragraph H. Every time a student speaks,

42

she risks causing another student emotional distress and

receiving punishment under Paragraph H. This is a heavy

weight for students to bear. Moreover, other provisions of the

Code could be invoked to punish students for non-expressive

conduct or unprotected speech that causes emotional distress:

for example, Major Infraction Paragraph B prohibits assault and

infliction or threat of bodily harm to a person; General

Infraction Paragraph A prohibits negligent bodily harm; and

Major Infraction Paragraph D prohibits sexual harassment. On

top of the Code, there are numerous Virgin Islands statutes that

prohibit conduct that may cause emotional distress. E.g., V.I.

Code tit. 14, § 292 (defining assault and battery); V.I. Code tit.

14, § 1022 (defining obscene and indecent conduct). Because

these other avenues for punishment exist, in striking a “balance

between competing social costs,” Williams, 553 U.S. at

292—the chilling of protected speech in a university setting,

which is harmful to the core mission of the university, see supra

Part IV.B, balanced against the harm caused by the subset of

conduct that causes emotional distress and cannot be punished

under other Code provisions or Virgin Islands law (if any even

exist)—we conclude that the harm done to students’ speech

rights is substantial and requires vindication.

Paragraph H has no reasonable, limiting constitutional

construction. The District Court concluded that Paragraph H

includes only speech that significantly interferes with the rights

of others at UVI. But construing the paragraph that narrowly

would ignore the use of the word “includes” and the prohibition

43

on conduct “which compels [a] victim to seek assistance in

dealing with . . . distress”—a broad, subjective prohibition for

which no objective indicia are offered to explain when the

provision would be violated. As such, we conclude that

Paragraph H is overbroad in violation of the First Amendment.

C.

Finally, McCauley challenges Paragraph B, which states:

B. Verbal Assault, Lewd, Indecent or

Obscene Conduct or Expressions on

University Owned or Controlled Property

or at University Sponsored or Supervised

Functions.

At trial, McCauley conceded that he had no desire to engage in

the behaviors described in Paragraph B and the District Court

dismissed his challenge, concluding that he had failed to

establish a cognizable injury. Because McCauley need not show

injury to himself to assert a facial challenge to Paragraph B, see

supra Part II, we will evaluate his claim on the merits.

McCauley asserts that Paragraph B is overbroad because

it captures speech that is protected, namely lewd, indecent, or

obscene conduct. Paragraph B has a reasonable limiting

construction that saves it from unconstitutionality. See

Sypniewski, 307 F.3d at 259. “Lewd,” “indecent,” and

44

“obscene,” could collectively be interpreted to prohibit only

speech that is unprotected by the First Amendment under the

Miller obscenity test, see Miller, 413 U.S. at 24-25. Thus,

Paragraph B, on its face, does not violate the First Amendment.

VI.

McCauley also asserts that the District Court erred by not

deciding his as-applied challenge to Paragraph E. The District

Court’s conclusion that Paragraph E was unconstitutional on its

face rendered adjudication of McCauley’s as-applied challenge

unnecessary. It appears that McCauley raised this issue in hopes

of receiving the $200 he paid in fines for his violation of

Paragraph E and letters of apology from UVI employees.

McCauley cannot seek money damages from Ragster and

Georges. See Will, 491 U.S. at 71. There are no allegations that

the two UVI employees, in their individual capacities, harmed

McCauley. See supra Part III. Without such allegations, there

is no question that Georges and Ragster cannot be ordered to

pay money damages to McCauley, so adjudication of his as-

applied challenge would serve no purpose. McCauley’s request

that we require UVI officials to write letters of apology was not

raised in the District Court and he cites no authority supporting

his request. We decline to grant him that relief.

VII.

In conclusion, UVI, Georges, and Ragster were rightly

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deemed not to be “persons” for purposes of § 1983. On remand,

McCauley’s challenge to Paragraph C should be dismissed for

lack of standing because any injury from that paragraph was not

based on chilled speech. The District Court’s dismissal of

Paragraph B for lack of an injury should be reversed and

judgment should be entered in favor of Georges and Ragster

because that paragraph has a limited, constitutional construction.

The other two paragraphs, Paragraphs H and R, are largely

subjective and lack limiting constructions to save them from

violating the First Amendment. Therefore, on remand, the

District Court should enter judgment in favor of McCauley and

against Georges and Ragster (in their official capacities) with

respect to both those paragraphs. The other aspects of the

District Court’s judgment should remain undisturbed.

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