Lawson v. University of Hawaii et al

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
KENNETH L. LAWSON,
Plaintiff,
vs.
UNIVERSITY OF HAWAI`I, DAVID
LASSNER, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES; MICHAEL
BRUNO, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES; CAMILLE
NELSON, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES; NICHOLAS
A. MIRKAY, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES; AND
JANE/JOHN DOES 1-10, IN THEIR
OFFICIAL AND INDIVIDUAL
CAPACITIES;
Defendants.
CIV. NO. 24-00172 LEK-RT
ORDER DENYING PLAINTIFF’S EX PARTE
MOTION FOR TEMPORARY RESTRAINING ORDER
Before the Court pro se Plaintiff Kenneth L. Lawson’s
(“Lawson” or “Plaintiff”) Ex Parte Motion for Temporary
Restraining Order (“TRO Motion”), filed on April 19, 2024. [Dkt.
no. 20.] On April 26, 2024, Defendants University of Hawai`i,
Mānoa (“the University”), David Lassner, Michael Bruno, Camille
Nelson, and Nicholas Mirkay (collectively “Defendants”) filed
their opposition to the TRO Motion (“Opposition”). [Dkt.
no. 22.] This matter came on for hearing on May 3, 2024.
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Lawson’s TRO Motion is hereby denied for the reasons set forth
below.
BACKGROUND
The incident originally giving rise the claims in this
case occurred during a February 17, 2023 faculty meeting at the
University’s William S. Richardson School of Law (“WSRSL” or
“the law school”). Lawson expressed his objections to the
February 23, 2023 Black History Month event that was planned by
the law school’s Diversity, Equity, and Inclusion (“DEI”)
committee (“the Event”). Lawson was alleged to have been
disruptive, intimidating, and threatening when speaking about
the Event, but he denies those allegations. See generally
Verified Complaint, filed 4/15/24 (dkt. no. 1).
The next day, he sent an email to Defendant Camille
Nelson, the Dean of the law school (“Nelson”); Professor Susan
Serrano (“Serrano”); 1 Defendant Nicholas A. Mirkay, Assistant
Dean of the law school (“Mirkay”); and other law school faculty
and staff. The email continued to express the sentiments Lawson
expressed at the meeting. [Motion for Preliminary Injunction and
Request for Expedited Hearing (“Preliminary Injunction Motion”),
1 Professor Susan Serrano was involved in the organization
of the Event. [Opposition, Declaration of Susan Serrano
(“Serrano Decl.”) at ¶ 7.]
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filed 4/15/24 (dkt. no. 14), Declaration of Kenneth L. Lawson
(“Lawson Decl.”), Exh. 11.]
On February 21, 2023, Lawson sent an email to law
students, law school faculty, and law school staff, using the
law school’s listserv. The email stated Lawson and the members
of the law school’s chapter of the National Black Law Students
Association (“BLSA”) were calling for a boycott of the Event.
[Id., Exh. 14 (boycott email sent by Lawson and replies that he
received) at PageID.249-54.]
On February 27, 2023, Defendant Michael Bruno, Provost
of the University of Hawai`i at Mānoa (“Bruno”), sent Lawson a
letter notifying him of allegations that were raised to the
University regarding Lawson’s conduct at the meeting and his
statements in the related emails in the days after the meeting
(“Bruno’s 2/27/23 Letter”). [Opposition, Decl. of Michael S.
Bruno (“Bruno Decl.”), Exh. 1.] Bruno’s 2/27/23 Letter informed
Lawson of the following actions taken while a fact-finding
investigation was conducted:
-Lawson was assigned to work from home for thirty days, during
which time, the course he was teaching would be held
online;
-he was prohibited from coming on to the law school grounds, but
he was permitted to access the University’s public
facilities;
-he was prohibited from sending emails using the law school’s
listservs, unless he obtained prior approval; and
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-he was prohibited contacting Nelson, various law school
faculty, including Serrano, and other persons associated
with the law school.
These restrictions have been renewed every thirty days, with
some modifications. See, e.g., Bruno Decl., Exh. 2 (letter dated
11/1/23 to Lawson from Bruno, informing Lawson of a thirty-day
extension through 11/1/23, granting Lawson permission to use the
moot courtroom on certain days and times to meet with BLSA
members, and noting that arrangements had been made for Lawson
to utilize office space in another building on the University
campus); id., Exh. 4 (letter dated 12/2/23 to Lawson from Bruno,
noting that Bruno informed Lawson in a 11/1/23 letter of the
extension through 12/1/23).
Bruno issued another letter, dated March 28, 2023,
notifying Lawson of additional allegations that would be part of
the investigation (“Bruno’s 3/28/23 Letter”). [Opposition,
Declaration of Teresa Kono (“Kono Decl.”), Exh. 20. 2 ]
Dr. Clementina Ceria-Ulep, Dean of the University’s
nursing school (“Dean Ceria-Ulep”), was designated as the
Decision Maker. Dean Ceria-Ulep sent Lawson a letter, dated
12/1/23, informing Lawson of her decision (“Decision Maker’s
12/1/23 Letter”). [Bruno Decl., Exh. 3.] Dean Ceria-Ulep found
2 Teresa Kono is the Director of Faculty Excellence, in the
University’s Office of the Vice Provost for Academic Excellence.
Prior to February 24, 2024, she was the Interim Program Officer
for Academic Personnel. [Kono Decl. at ¶ 1.]
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that most of the allegations against Lawson were substantiated,
at least in part. Dean Ceria-Ulep recommended that Bruno impose
the following against Lawson:
● 	One-month suspension without pay;
● 	Mandatory one-on-one training with the
Office of the Vice Provost for Academic
Excellence on EP 9.210, the University’s
Workplace Non-Violence Policy;
● 	Mandatory training with the Office of Equity
Assurance on both EP 1.202,
Nondiscrimination, Equal Opportunity and
Affirmative Action and EP 1.204, Sex and
Gender Based Misconduct; and
● 	Mandatory anger management training to
provide Lawson with tools and resources to
engage in conversations in a collegial
manner.
[Id. at PageID.588.]
The extensions of the restrictions in Bruno’s 2/27/23
Letter were extended while the review process continued. See,
e.g., Bruno Decl., Exh. 4 (letter dated 12/2/23 to Lawson from
Bruno, informing Lawson of the extension through 1/1/23,
although this appears to be a typographic error that should
refer to 1/1/24); id., Exh. 7 (letter dated 3/2/24 to Lawson
from Bruno, informing Lawson of the extension through 4/2/24
because all of the processes under the applicable collective
bargaining agreement (“CBA”) had not been completed, and no
final action had been taken).
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Bruno rendered his final decision in a letter dated
March 8, 2024 (“Bruno’s 3/8/24 Letter”). [Id., Exh. 9.] Lawson
had previously informed Bruno that he intentionally did not
object to Dean Ceria-Ulep’s recommendation. Bruno confirmed Dean
Ceria-Ulep’s decision and adopted the recommended actions. [Id.
at PageID.599.] Bruno offered Lawson two options for the timing
of the suspension:
Option 1
Have your suspension effective April 1, 2024 to
April 30, 2024, complete the above training
before and after the suspension (no work or
trainings will be authorized during your dates of
suspension), and return to the WSRSL campus upon
the fulfillment of the required suspension and
training. Associate Dean Mirkay will find an
instructor to take over your courses while you
are carrying out the suspension.
Option 2
Start the internal training now while a service
provider is identified for your anger management
training, continue to work from home (or your
temporary alternate office), have your suspension
begin on May 16, 2024 to June 15, 2024, and
return to the WSRSL campus upon the fulfillment
of the required suspension and training.
[Id. (emphases in original).] Bruno instructed Lawson to inform
Bruno of his decision between the two options before the close
of business on March 18, 2024. Bruno stated that, if Lawson did
not do so, the University would proceed with Option 2. [Id.]
Bruno also stated that the no-contact restriction would remain
in place as to Serrano, even after Lawson was allowed to return
to the law school campus. [Id. at PageID.599-600.] Bruno stated
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the restriction would “be revisited as necessary.” [Id. at
PageID.599.] Bruno’s 3/8/24 Letter concluded with:
. . . . Please be mindful that any future
violations of University policy of similar nature
may result in disciplinary action, up to and
including discharge.
In accordance with Article XVIII.B.2., this
action is final and binding.
[Id. at PageID.600.]
Lawson responded in a letter to Bruno, dated March 18,
2024. Lawson expressed his disagreement with many portions of
Bruno’s 3/8/24 Letter, and he criticized both Option 1 and
Option 2, without choosing either option. [Bruno Decl.,
Exh. 10.] Lawson stated he “ha[s] chosen to fight back
vigorously in this matter.” [Id. at PageID.604.]
Lawson filed a formal step 2 grievance of Bruno’s
3/8/24 Letter to University of Hawai`i President David Lassner
(“Lasser” “Grievance of 3/8/24 Letter”). [Opposition, Exh. 25. 3 ]
Lawson stated he was not challenging the disciplinary actions in
3 Defendants did not submit a declaration authenticating
Exhibit 25. However, the Grievance of 3/8/24 Letter appears to
be the March 20, 2024 grievance referred to in the April 9, 2024
letter to Lawson from Jeffrey Long, Director, UH System Office
of Human Resources. See Opposition, Declaration of Jeffrey Long
(“Long Decl.”), Exh. 26 (4/9/24 letter and emails dated from
4/3/24 to 4/10/24 between Lawson and Long) at PageID.838; see
also id. at PageID.843-44 (4/4/24 email to Lawson from Long that
included Lawson’s 3/20/24 email to Lasser transmitting his
grievance). Defendants are cautioned that the future submission
of exhibits without an authenticating declaration may result in
the striking of the exhibits.
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the Decision Maker’s 12/1/23 Letter because he acknowledged they
are final. However, he argued they are final, not because of
Bruno’s 3/8/24 Letter, but because the appeal hearing officer
rendered a decision dated February 2, 2024. Id. at PageID.831;
see also Opposition, Exh. 21 (letter dated 2/2/24 to Lawson from
Chad Walton, Ph.D. (“2/2/23 Appeal Denial Letter”)). Lawson
stated his grievance was limited to the additional disciplinary
actions imposed in Bruno’s 3/8/24 Letter. See Opposition,
Exh. 25 at PageID.838. However, Lawson subsequently withdrew
this grievance because he believed the University was refusing
to follow the CBA. See id. at PageID.839 (noting Lawson’s 4/6/24
email to Lasser withdrawing the grievance).
On October 25, 2023, Lawson, through counsel, filed an
action in state court against the University, Nelson, in her
individual capacity, and Bruno, in his individual capacity. See
Lawson v. Univ. of Hawai`i at Mānoa et al., 1CCV-23-0001391
(Hawai`i 1st Cir. Ct.) (“State Court No. 23-1391”). The First
Amended Complaint in that case was filed on April 17, 2024, and
it alleges: claims sounding in contract related to the alleged
breach of a settlement agreement reached during Lawson’s salary
and misclassification grievance; Hawai`i Revised Statutes
Section 378-2 discrimination and retaliation claims based on
race, color, arrest, court record, and disability; and Hawai`i
Revised Statutes Section 378-62 whistleblowers’ claims based on
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his complaints about what he believed was an illegal conversion
of his faculty position. See Opposition, Exh. 34 (State Court
No. 23-1391 First Amended Complaint). State Court No. 23-1391
appears to be unrelated to the events that gave rise to the
instant case.
On March 14, 2024, Lawson, through counsel, filed an
action in state court against the University, Nelson, in her
individual capacity, and Bruno, in his individual capacity. See
Lawson v. Univ. of Hawai`i at Mānoa et al., 1CCV-24-0000340
(Hawai`i 1st Cir. Ct.) (“State Court No. 24-340”). The First
Amended Complaint in that case was filed on April 17, 2024, and
it alleges: discrimination and retaliation claims pursuant to
Sections 378-2 and 378-62 based on race, color, arrest, court
record, and disability. See Opposition, Exh. 35 (State Court
No. 24-340 First Amended Complaint). The State Court No. 24-340
First Amended Complaint contains extensive allegations regarding
the events that gave rise to the claims in this case. See id. at
¶¶ 85-174.
Lawson filed his Verified Complaint on April 15, 2024.
[Dkt. no. 1.] He alleges the following claims: a Title 42 United
States Code Section 1983 claim alleging content and viewpoint
discrimination, in violation of his First Amendment rights;
Section 1983 claims alleging retaliation for the exercise of his
First Amendment rights; a Section 1983 claim alleging prior
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restraint, in violation of his First Amendment rights;
Section 1983 claims asserting facial and as-applied challenges
to University Executive Policy 1.202 and to University Executive
Policy 9.210; a Section 1983 claim alleging violation of his
Fourteenth Amendment due process rights; a Title 42 United
States Code Section 1985 claim alleging conspiracy to violate
civil rights; a Title 42 United States Code Section 1986 claim
alleging failure to prevent violation of civil rights; a
discrimination claim under Title VII of the Civil Rights Act of
1964 (“Title VII”), Title 42 United States Code Section 2000e et
seq.; and a Title VII retaliation claim.
In the TRO Motion, Lawson requests a temporary
restraining order (“TRO”) that would remain in effect until the
June 14, 2024 hearing on the Preliminary Injunction Motion. 4 [TRO
Motion at 1.] Lawson requests a TRO that would: require
Defendants to lift the ban on Lawson’s entry on to the law
school campus, which would allow Lawson to resume in-person
teaching, student counseling, and directing law school
organizations; preclude Defendants from enforcing the sanctions
in the Decision Maker’s 12/1/23 Letter; precluding them from
4 The Preliminary Injunction Motion included a request for
an expedited hearing, but that request has been denied. [Minute
Order – EO: Court Order Setting Hearing on Plaintiff’s Motion
for Preliminary Injunction and Denying Plaintiff’s Request for
an Expedited Hearing, [filed 4/19/24 (dkt. no. 19).]
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taking or threatening disciplinary action against him for
speaking out on matters of public concern; require Defendants to
cease using University policies to regulate speech and conduct,
unless the speech and conduct rise to the level of harassment;
[id. at 5-7;] and require Defendants to “[c]ease using
Article XVIII, B.6. of the Unit 7 collective bargaining
agreement to weaponize Administrative Procedure AP 1.202,” [id.
at 7]. The TRO Motion seeks the rescission of the disciplinary
actions in both the Decision Maker’s 12/1/23 Letter and Bruno’s
3/8/24 Letter. [Id. at 6.]
Lawson argues Bruno’s 3/8/24 Letter threatens
“possible/probable termination if Plaintiff raises anti-Black
racism again at WSRSL,” and Lawson argues this threat
has a chilling effect on Plaintiff’s right to
continue to use his history in the U.S. Black
Civil Rights movement to teach and lecture on 4th
Amendment and civil rights violations and the
threat of future investigations and discipline
against him for his constitutionally protected
speech violates his First Amendment rights to
freedom of speech and academic freedom.
[TRO Motion at 5.]
STANDARD
Lawson must “carry a heavy burden” to obtain the
extraordinary relief of a TRO. See DLMC, Inc. v. Flores, CV.
NO. 18-00352 DKW-KSC, 2018 WL 6682986, at *2 (D. Hawai`i
Dec. 19, 2018) (citing Winter v. Nat. Res. Def. Council, Inc.,
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555 U.S. 7, 22 (2008)). “[T]he legal standards applicable to
TROs and preliminary injunctions are ‘substantially identical.’”
Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017)
(citation omitted).
A party moving for preliminary injunctive
relief must establish (1) a likelihood of success
on the merits, (2) a likelihood of irreparable
harm, (3) that the balance of harm tips in the
movant’s favor, and (4) that the injunction is in
the public interest. See All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
Cir. 2011). “The first factor — likelihood of
success on the merits — is the most important
factor.” California by & through Becerra v. Azar,
950 F.3d 1067, 1083 (9th Cir. 2020) (en banc)
(citation and quotation marks omitted).
Additionally, when a party seeks a preliminary
injunction against the government, as is the case
here, the balance of the equities and public
interest factors merge. See Drakes Bay Oyster Co.
v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)
(citing Nken v. Holder, 556 U.S. 418, 435, 129 S.
Ct. 1749, 173 L. Ed. 2d 550 (2009)).
Chamber of Com. of the U.S. v. Bonta, 62 F.4th 473, 481 (9th
Cir. 2023).
The Ninth Circuit also employs a “sliding
scale” approach to preliminary injunctions, under
which “the elements of the preliminary injunction
test are balanced, so that a stronger showing of
one element may offset a weaker showing of
another.” All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1131 (9th Cir. 2011). The issuance
of a preliminary injunction may be appropriate
when there are “‘serious questions going to the
merits’ and a balance of hardships that tips
sharply towards the plaintiff . . . so long as
the plaintiff also shows that there is a
likelihood of irreparable injury and that the
injunction is in the public interest.” Id. at
1135.
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O’Hailpin v. Hawaiian Airlines, Inc., 583 F. Supp. 3d 1294, 1301
(D. Hawai`i 2022) (alteration in O’Hailpin).
DISCUSSION
I. 	Irreparable Harm
“A plaintiff seeking preliminary relief must
‘demonstrate that irreparable injury is likely in the absence of
an injunction.’” California v. Azar, 911 F.3d 558, 581 (9th Cir.
2018) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22, 129 S. Ct. 365 (2008) (emphasis omitted)). “Irreparable
harm is traditionally defined as harm for which there is no
adequate legal remedy, such as an award of damages.” Ariz. Dream
Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014)
(citation omitted). “It is well established that the deprivation
of constitutional rights ‘unquestionably constitutes irreparable
injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.
2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct.
2673, 49 L. Ed. 2d 547 (1976)). The Ninth Circuit does “not
require a strong showing of irreparable harm for constitutional
injuries.” Cuviello v. City of Vallejo, 944 F.3d 816, 833 (9th
Cir. 2019).
Lawson argues “he is being deprived of his
Constitutional right to free speech and unabridged assembly,”
and “[t]his daily, continuous, and unending deprivation of his
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First Amendment rights has caused[ and] continues to cause, each
day, irreparable harm.” [TRO Motion at 2.] However, the mere
fact that Lawson alleges violations of his First Amendment
rights does not automatically constitute the establishment of
irreparable harm. The Ninth Circuit has stated that:
Irreparable harm is relatively easy to
establish in a First Amendment case. “[A] party
seeking preliminary injunctive relief in a First
Amendment context can establish irreparable
injury . . . by demonstrating the existence of a
colorable First Amendment claim.” Sammartano v.
First Judicial District Court, 303 F.3d 959, 973
(9th Cir. 2002) (citation omitted), abrogated on
other grounds by Winter v. Nat. Res. Def.
Council., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L.
Ed. 2d 249 (2008). . . .
“[T]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably
constitutes irreparable injury.” Id. (citing
Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct.
2673, 49 L. Ed. 2d 547 (1976)). But the mere
assertion of First Amendment rights does not
automatically require a finding of irreparable
injury. It is the “purposeful unconstitutional
suppression of speech [that] constitutes
irreparable harm for preliminary injunction
purposes.” Goldie’s Bookstore v. Superior Ct.,
739 F.2d 466, 472 (9th Cir. 1984). . . .
CTIA - The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 851
(9th Cir. 2019) (some alterations in CTIA) (emphasis added).
Here, Lawson’s speech was not suppressed. He was not
prevented from teaching his class; he was assigned to work-from-
home status and allowed to teach his class online. Although
Lawson was banned from the law school campus, he was later
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provided with an office in a different part of the University
campus. He was also approved to use the moot courtroom at the
law school to help the BLSA members prepare for a moot court
competition. Lawson was prohibited from using the law school’s
listserv to communicate with law school students, faculty, and
staff, but he was not prohibited from communicating directly
with specific students, faculty members, or staff members,
except for the ones identified in the no-contact sections of
Bruno’s 2/27/23 Letter and Bruno’s 3/8/24 Letter. 5 Thus, Lawson
still had the opportunity to meet with students in person,
contact them through email, and advise the law school
organizations he was working with. Lawson was subjected to
reasonable restrictions on his speech and assembly while fact-
finding, decision-making, and review processes were ongoing. The
restrictions will be lifted upon the completion of Lawson’s
suspension and the required trainings. See Bruno Decl., Exh. 9
at PageID.599. There is only one restriction that would remain
in effect indefinitely, which is the no-contact order regarding
Serrano. Id. at PageID.599-600. While Lawson objects, in
principle, to the continuing no-contact order, he has not
identified any harm suffered because he is prohibited from
5 At the time of Bruno’s 3/8/24 Letter, the no-contact order
only remained in effect as to Serrano. [Bruno Decl., Exh. 9 at
PageID.599-600.]
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contacting Serrano. See, e.g., Opposition, Exh. 25 (Grievance of
3/8/24 Letter) at 2 (“While the thought of no contact with Susan
[Serrano] is not troubling for me, its unilateral and
unexplained imposition follows a troubling pattern.”).
This Court must reject Lawson’s allegation that
Bruno’s 3/8/24 Letter “threatened Plaintiff with possible
termination if he exercises his right to whistle-blow and expose
anti-Black racism that Defendants, to this very day, continue to
inflict on him.” [TRO Motion at 2.] Bruno’s 3/8/24 Letter
stated:
As Dean Ceria-Ulep noted in her decision, “the
University promotes differences of opinion and
the ability to raise concerns when there are
perceptions of impropriety; however, it is also
expected that faculty engage in such discussions
with professionalism and collegiality.” Please be
mindful that any future violations of University
policy of similar nature may result in
disciplinary action, up to and including
discharge.
[Bruno Decl., Exh. 9 at PageID.600.] The plain language of the
letter is void of any threat of disciplinary action if Lawson
speaks out against racism at the law school. Rather, Dean Ceria-
Ulep stated the expectation for faculty members (presumably
including Lawson) to engage in discussions in a professional and
collegial manner, and that failure to do so may result in
disciplinary action. Thus, the exercise and content of speech is
not suppressed here because of the University’s requirement that
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speech must be engaged in with professionalism and collegiality.
This requirement is reasonable for a non-public forum. See OSU
Student All. v. Ray, 699 F.3d 1053, 1062 (9th Cir. 2012);
Camenzind v. Cal. Exposition & State Fair, 84 F.4th 1102, 1109
(9th Cir. 2023) (“Nonpublic fora . . . are areas that do not, by
tradition or designation, serve as a forum for public
communication.” (citation and internal quotation marks
omitted)). Lawson therefore has failed to establish that he is
suffering irreparable harm because of the actions and omissions
at issue in this case.
II. 	Likelihood of Success on the Merits
“To establish a substantial likelihood of success on
the merits, [a plaintiff] must show ‘a fair chance of success.’”
In re Focus Media, Inc., 387 F.3d 1077, 1086 (9th Cir. 2004)
(quoting Republic of the Philippines v. Marcos, 862 F.2d 1355,
1362 (9th Cir. 1988) (en banc)). Lawson argues he is likely to
succeed on the merits of his First Amendment retaliation claim,
but he argues that, at a minimum, he has established serious
questions regarding the merits of his claim. [TRO Motion, Mem.
in Supp. at 6-7.]
The Ninth Circuit has stated that, in the public
employment context,
[a] First Amendment retaliation claim turns
on a sequential five-step series of questions:
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(1) whether the plaintiff spoke on a matter
of public concern; (2) whether the plaintiff
spoke as a private citizen or public
employee; (3) whether the plaintiff’s
protected speech was a substantial or
motivating factor in the adverse employment
action; (4) whether the state had an
adequate justification for treating the
employee differently from other members of
the general public; and (5) whether the
state would have taken the adverse
employment action even absent the protected
speech.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.
2009). The plaintiff bears the burden on the
first three questions. See id. at 1070–71. If the
plaintiff meets this burden, the burden shifts to
the defendant on the last two questions. See id.
at 1071–72. When a constitutional violation has
been established, a plaintiff may recover damages
that are proximately caused thereby. See County
of Los Angeles v. Mendez, ––– U.S. ––––, 137 S.
Ct. 1539, 1548–49, 198 L. Ed. 2d 52 (2017). The
plaintiff must also establish that the
defendant’s retaliatory conduct was a but-for
cause of the defendant’s damages. See Mendez v.
County of Los Angeles, 897 F.3d 1067, 1074 (9th
Cir. 2018).
Greisen v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019).
A. 	Matter of Public Concern
Whether speech is on a matter of public
concern is a question of law, determined by the
court, and reviewed by us de novo. See Berry v.
Dep’t of Soc. Servs., 447 F.3d 642, 648 (9th Cir.
2006). The speech need not be entirely about
matters of public concern, but it must
“substantially involve” such matters. Johnson v.
Multnomah County, 48 F.3d 420, 425 (9th Cir.
1995). “[S]peech warrants protection when it
‘seek[s] to bring to light actual or potential
wrongdoing or breach of public trust.’” Barone v.
City of Springfield, 902 F.3d 1091, 1098 (9th
Cir. 2018) (second alteration in original)
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(quoting Connick v. Myers, 461 U.S. 138, 148, 103
S. Ct. 1684, 75 L. Ed. 2d 708 (1983)). The
“misuse of public funds . . . [is a] matter[] of
inherent public concern.” Johnson, 48 F.3d at
425.
“Whether an employee’s speech addresses a
matter of public concern must be determined by
the content, form, and context of a given
statement, as revealed by the whole record.”
Connick, 461 U.S. at 147–48, 103 S. Ct. 1684.
“[T]he content of the speech is generally the
most important.” Karl v. City of Mountlake
Terrace, 678 F.3d 1062, 1069 (9th Cir. 2012). In
reviewing form and context, “we focus on the
point of the speech, looking to such factors as
the employee’s motivation and the audience chosen
for the speech.” Ulrich v. City & County of San
Francisco, 308 F.3d 968, 979 (9th Cir. 2002)
(citation and internal quotation marks omitted).
This analysis seeks to determine whether the
employee aimed “‘to bring wrongdoing to light,’
not ‘merely to further some purely private
interest.’” Id. (quoting Havekost v. U.S. Dep’t
of Navy, 925 F.2d 316, 318 (9th Cir. 1991)).
“[S]peech that deals with ‘individual personnel
disputes and grievances’ and that would be of ‘no
relevance to the public’s evaluation of the
performance of governmental agencies’ is
generally not of ‘public concern.’” Coszalter v.
City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)
(quoting McKinley v. City of Eloy, 705 F.2d 1110,
1114 (9th Cir. 1983)).
Id. at 1109 (alterations in Greisen).
At the February 17, 2023 faculty meeting, Lawson
criticized the Event and questioned why the DEI committee “had
not included any Black individuals as facilitators or panelists”
for the Event. [Lawson Decl. at ¶ 12.] Lawson stated the
exclusion “was an example of what academic scholar and author
Robin DiAngelo addressed at length in her book ‘Nice Racism.’”
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[Id. at ¶ 14.] The Event, which was to occur within a week after
the faculty meeting, was publicized to the entire law school
community. See id. at ¶ 3; see also id., Exh. 1 (flyer for the
Event that was sent using the law school’s listserv). This Court
concludes that the general subject of Lawson’s speech at the
February 17, 2023 faculty meeting – whether the Event was
appropriate - addressed a matter of public concern. However,
during his speech about a matter of public concern, Lawson made
some remarks that expressed individual disputes and grievances,
such as his comparison of his Black experience with Nelson’s.
B. 	Private Citizen
In Garcetti v. Ceballos, 547 U.S. 410, 421,
126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), the
Supreme Court held that, “when public employees
make statements pursuant to their official
duties, the employees are not speaking as
citizens for First Amendment purposes, and the
Constitution does not insulate their
communications from employer discipline.”
“[S]tatements are made in the speaker’s capacity
as citizen if the speaker had no official duty to
make the questioned statements, or if the speech
was not the product of performing the tasks the
employee was paid to perform.” Posey v. Lake Pend
Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127
n.2 (9th Cir. 2008) (alterations, citation and
internal quotation marks omitted). We look to
three non-exhaustive factors to make this
assessment: (1) whether “the employee confined
his communications to his chain of command”;
(2) whether “the subject matter of the
communication” fell within the plaintiff’s
regular job duties; and (3) whether the “employee
sp[oke] in direct contravention to his
supervisor’s order[].” Dahlia v. Rodriguez, 735
F.3d 1060, 1074–75 (9th Cir. 2013) (en banc). The
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scope and content of a plaintiff’s official
duties are questions of fact, but a court must
“independently . . . evaluate the ultimate
constitutional significance of the facts as
found.” Posey, 546 F.3d at 1129.
Greisen, 925 F.3d at 1111 (alterations in Greisen). Although
Lawson attended the February 17, 2023 faculty meeting in the
course of his job duties, it does not appear that the
organization of the Event was within his job duties. This Court
therefore concludes that Lawson spoke as a private citizen.
C. 	Adverse Employment Action and Causation
“In a First Amendment retaliation case, an adverse
employment action is an act that is reasonably likely to deter
employees from engaging in constitutionally protected speech.”
Greisen, 925 F.3d 1097, 1113 (citation and quotation marks
omitted). In this case, it is clear that Bruno’s 2/27/23 Letter
and Bruno’s 3/8/24 Letter each imposed one or more adverse
employment actions on Lawson. However, he has failed to
establish that his protected speech as a substantial or
motivating factor in the adverse employment decisions. The
allegations against Lawson show that it was his conduct that was
at issue, not his protected speech.
● 	You engaged in an abusive/hostile verbal
attack on the Black History Month event and
organizers because they did not invite you
or outside Black community members to speak;
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● 	You accused the organizers and other faculty
members of engaging in “white fragility” and
racism;
● 	You responded to those who spoke out with
derision and vitriol and with your voice
raised;
● 	You swore and yelled at, belittled and
berated Camille Nelson, Dean, William S.
Richardson School of Law (WSRSL) when she
tried to calmly respond to you;
● 	You questioned Dean Nelson’s “black
experience” as someone not raised in the
United States and referred to her as a nice
racist;
● 	You referred to Carole Petersen, Professor,
WSRSL as a “woke liberal”, stated that her
perspective on the Black History Month
discussion was racist, pointed at her and
with a raised voice said that this was
“exactly what is wrong with the Law School”;
● 	You repeatedly interrupted Dean Nelson when
she tried to speak;
● 	You utilized intimidating gestures, pointed
and waved your hands at Dean Nelson, and
slammed the desk;
● 	Both in the meeting and in subsequent emails
after the meeting, you utilized words
perceived as veiled threats, such as
informing meeting attendants, students and
staff via a listserv that you were not non-
violent, and repeatedly inviting another
faculty member who submitted a proposal for
ground rules for future faculty meetings to
“come at me”;
● 	Your threatening and belittling words and
actions created an unsafe space for
discussion and silenced the room;
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● 	You continued to attack Dean Nelson in an
email to a listserv distributed to all WSRSL
students and faculty and to external parties
as well; and
● 	Your actions in the meeting and subsequent
email communications have created a hostile
work environment for several of your
colleagues.
[Bruno Decl., Exh. 1 (Bruno’s 2/27/23 Letter) at PageID.568-69.]
● 	Your verbal attack in the February 17
meeting was perceived as “misogynistic” and
targeted towards your female colleagues;
● 	While you were speaking, you were “staring
down” only female colleagues;
● 	You attacked a female colleague when she
tried to provide a different perspective;
● 	Your actions towards your female Dean in the
meeting and in subsequent communications
were unlike communications you had with the
prior male Dean; and
● 	You quickly reacted and attacked your female
colleagues when they requested the
establishment of ground rules in faculty
conversations, but when your male colleagues
spoke out against your actions in the
meeting, you did not respond.
[Kono Decl., Exh. 20 (Bruno’s 3/28/23 Letter) at PageID.817.]
Dean Ceria-Ulep found that most of the allegations
were substantiated, at least in part, but she found that the
following were unsubstantiated: the allegation that Lawson “used
intimidating gestures”; [Bruno Decl., Exh. 3 (Decision Maker’s
12/1/23 Letter) at PageID.580;] the allegation that Lawson’s
“verbal attack . . . was perceived as ‘misogynistic’”; [id. at
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PageID.586;] and the allegation that Lawson’s actions toward
Nelson at the meeting were unlike the way he acted toward the
former dean, who was a male; [id. at PageID.587]. Lawson
appealed Dean Ceria-Ulep’s decision, and it was upheld. See
Opposition, Exh. 21 (2/2/24 Appeal Denial Letter). Lawson has
acknowledged that the 12/1/23 Decision Maker’s Letter is final
and binding. See id., Exh. 25 (Grievance of 3/8/24 Letter) at
PageID.831. This Court therefore accepts the findings in the
12/1/23 Decision Maker’s Letter. In light of those findings,
Lawson has failed to establish that his protected activity was a
substantial or motiving factor in the adverse employment
decisions. To the extent that Lawson is now attempting to
challenge any of the findings 12/1/23 Decision Maker’s Letter
and the disciplinary actions that were imposed in response to
that decision, he cannot do so in federal court. It is an
employment dispute that should be, or should have been,
addressed through the applicable administrative and/or state-law
procedures.
D. 	Ruling on the Merits
Lawson has failed to carry his burden of proof as to
the first three requirements of the First Amendment retaliation
claim analysis. Therefore, it is unnecessary for Defendants to
address the last two parts of the analysis. See Greisen, 925
F.3d at 1108. Lawson has not established a substantial
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likelihood of success on the merits. Even if the “serious
questions going to the merits” standard were applied, see All.
for the Wild Rockies, 632 F.3d at 1135, Lawson has not met that
standard.
III. Balancing of the Equities and Public Interest
As previously noted, the balancing of the equities
factor and the public interest factor merge because Lawson is
suing a state university and its officials. See Bonta, 62 F.4th
at 481. “Generally, public interest concerns are implicated when
a constitutional right has been violated, because all citizens
have a stake in upholding the Constitution.” Preminger v.
Principi, 422 F.3d 815, 826 (9th Cir. 2005) (citation omitted);
see also Melendres, 695 F.3d at 1002 (“[I]t is always in the
public interest to prevent the violation of a party’s
constitutional rights.” (quotation marks and citation omitted)).
Because Lawson has not established that his First Amendment
rights have been violated, and based upon the current record as
a whole, the balancing of the equities factor and the public
interest factor weigh against the issuance of a TRO.
Thus, Lawson has failed to establish any of the
requirements for a TRO.
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CONCLUSION
For the foregoing reasons, Lawson’s Ex Parte Motion
for Temporary Restraining Order, filed April 19, 2024, is HEREBY
DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, May 3, 2024.
KENNETH L. LAWSON VS. UNIVERSITY OF HAWAI`I, ET AL; CV 24-00172
LEK-RT; ORDER DENYING PLAINTIFF’S EX PARTE MOTION FOR TEMPORARY
RESTRAINING ORDER
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