Peter T. Harrell v. Southern Oregon University;

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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER T. HARRELL,
Plaintiff - Appellant,
v.
SOUTHERN OREGON UNIVERSITY; et
al.,
Defendants - Appellees.
No. 10-35549
D.C. No. 1:08-cv-03037-CL
MEMORANDUM*
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
FILED
JUL 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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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