The Supreme Court recently denied certification in two free speech cases involving decisions made by public universities, Dixon v. University of Toledo and Ed Ray v. OSU Student Alliance.

In Dixon, a former interim Associate Vice President for Human Resources at the University of Toledo petitioned the Court to determine whether the Sixth Circuit properly held that the University did not violate her First Amendment rights when it fired her for publishing an opinion editorial on gay rights and the denial of certain health benefits to University employees in same-sex relationships. Dixon argued that she wrote the editorial as a private citizen addressing a public concern and, therefore, the Sixth Circuit erred by upholding the University’s action under the “policymaker exception,” which favors the employer when a policymaking employee engages in speech on a policy issue related to his/her position. The Supreme Court denied certification, leaving a split amongst the circuits over who qualifies as a policymaker for the purpose of resolving conflicts between a government employee’s free speech rights and a government employer’s right to terminate employment.

In Ed Ray, Oregon State University (OSU) petitioned the Court for review of the Ninth Circuit opinion holding that university officials may be individually liable for violating the constitutional rights of a group of student journalists. In this case, unknown university employees confiscated news bins distributing a conservative student newspaper. The Ninth Circuit held that the student journalists adequately pled that the University violated their Free Speech, Equal Protection and Due Process rights. The Court also held that the complaint properly tied theses violations to the four individual defendants, who were senior University officials, despite that the students did not know the identities of the employees who threw the news bins into the trash or who gave the order to confiscate the bins. The University’s petition challenged whether a government official can be held liable under 42 U.S.C. § 1983 if he/she had knowledge of unlawful conduct or action, or whether the government official must have themselves engaged in some unlawful conduct or action. The Supreme Court declined to clarify this issue, which originated from language in the Supreme Court’s pleading standard case, Ashcroft v. Iqbal, 556 U.S. 662 (2009).