# Peter Harrell v. Southern Oregon University

> Court of Appeals for the Ninth Circuit · July 20, 2012 · 474 F. App'x 665

URL: https://www.frixlaw.com/law-library/cases/804873

## Case

- **Full name:** Peter T. HARRELL, Plaintiff—Appellant, v. SOUTHERN OREGON UNIVERSITY; Et Al., Defendants—Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** July 20, 2012
- **Citations:** 474 F. App'x 665
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Fletcher, Pregerson, Walter
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FILED
NOT FOR PUBLICATION JUL 20 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

PETER T. HARRELL, No. 10-35549

Plaintiff - Appellant, D.C. No. 1:08-cv-03037-CL

v.
MEMORANDUM *
SOUTHERN OREGON UNIVERSITY; et
al.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted July 11, 2012
Portland, Oregon

Before: B. FLETCHER and PREGERSON, Circuit Judges, and WALTER, Senior
District Judge.**

Plaintiff-Appellant Peter T. Harrell (“Harrell”) appeals the district court’s

grant of summary judgment for Defendants-Appellees in this 42 U.S.C. § 1983

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, sitting by designation.
action. The parties are familiar with the facts underlying the appeal and thus we do

not include them here.

Courts may exercise their sound discretion in first deciding whether an

individual and/or entity is entitled to qualified immunity before deciding whether

the facts alleged make out a violation of a constitutional right. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). We exercise that discretion and we conclude

that Appellees are entitled to qualified immunity.

A defendant is entitled to qualified immunity if the purported constitutional

right was not “clearly established” at the time of the challenged conduct. See

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). To be clearly established, a

right must be sufficiently clear “that every reasonable official would have

understood that what he is doing violates that right.” Id. at 2083 (internal marks

omitted).

The “clearly established” standard is not satisfied here and thus, Appellees

are entitled to qualified immunity. Harrell alleges that his First Amendment

constitutional rights were violated by the Appellees. The extent of Harrell’s

alleged First Amendment rights in the university context were not clearly

established at the time the events took place. As our court noted in a divided

opinion, “the appropriate speech standard for college and graduate students speech

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remains an open question in this circuit.” Brown v. Li, 308 F.3d 939, 960 (9th Cir.

2002) (Reinhardt, J., concurring in part and dissenting in part); see id. at 951

(noting that, “[w]e do not know with certainty that the Supreme Court would hold

that Hazelwood controls the inquiry into whether a university’s requirements for

and evaluation of a student’s curricular speech infringe that student’s First

Amendment rights”); see also Flint v. Dennison, 488 F.3d 816, 829 n.9 (9th Cir.

2007) (noting that, neither this court nor the Supreme Court have definitively

decided what standard applies in evaluating First Amendment claims in the

university context and also noting that our sister circuits are split on the issue).

Because “the contours of [Harrell’s First Amendment] right[s] [were not]

sufficiently clear that every reasonable official would have understood that what he

is doing violates that right,” Appellees are entitled to qualified immunity. al-Kidd,

131 S. Ct. at 2083 (internal marks omitted).

Accordingly, the district court’s grant of summary judgment is AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/804873. Public record. Not legal advice.