Rosenfeld et al v. University of Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 25-cv-00107-PAB-KAS
MARI ROSENFELD, and
MAX ALEXANDER INMAN,
Plaintiffs,
v.
UNIVERSITY OF COLORADO, through the Regents of the University of Colorado, a
body corporate, et al.,
Defendants.
ORDER
This matter comes before the Court on Defendants’ Motion to Dismiss Plaintiffs’
First Amended Complaint Under F.R.C.P. 12(b)(1) and 12(b)(6) [Docket No. 33].
Plaintiffs Mari Rosenfeld and Max Alexander Inman filed a response. Docket No. 52.
Defendants University of Colorado (“the University”), Justin Schwartz, Devin Cramer,
and Holly Nelson filed a reply. Docket No. 55. The Court has jurisdiction under 28
U.S.C. § 1331.
I. 	FACTS 1
At the time of the events alleged in the complaint, Ms. Rosenfeld was enrolled as
an undergraduate student at the University and worked as an on-campus employee.
Docket No. 22 at 2-3, ¶ 6. Mr. Inman was undergraduate student at the University who
1 The facts below are taken from plaintiffs’ complaint, Docket No. 22, and are
presumed to be true, unless otherwise noted, for purpose of ruling on the motion to
dismiss.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 1 of 30

2
graduated in December 2024 with a bachelor’s degree. Id. at 3, ¶ 7. On October 3,
2024, plaintiffs participated in a student protest at a University job fair, organized by the
student group Students for Justice in Palestine (“SJP”). Id. at 2, ¶ 3. SJP is “national
organization that supports over 350 assembled groups on college and university
campuses across North America.” Id. at 7, ¶ 29. SJP was “formed specifically to fight
for Palestinian liberation through political and educational actions” and protests “the
United States’ funding and other support for Israel’s ongoing assault on Gaza.” Id.,
¶ 30. The University of Colorado chapter of SJP was organized as a student group in
the summer of 2023. Id., ¶ 31. SJP registered as an official student-led group at the
University of Colorado in or around September 2023. Id. Registered student
organizations receive “a variety of benefits, such as funding for events, attendance at
the University student organization fair, promotional benefits, and the ability to host
registered events, with additional rights such as using amplified sound or music.” Id.,
¶ 32.
On or about August 28, 2024, SJP members met with Mr. Schwartz, Chancellor
of the University of Colorado and D’Andra Mull, Vice Chancellor of Student Affairs, to
discuss the University’s policies on speech and protests, including the Campus Use of
University Facilities (“CUUF”) procedures. Id. at 3, 8, ¶¶ 9, 34. Although the meeting
was initially scheduled for one hour, the meeting was cut short at 30 minutes by the
administration, “leaving SJP members with additional questions concerning relevant
policies.” Id. at 8, ¶ 35. SJP has been “subject to extreme monitoring by the
administration and abundant security presence at its planned events in an effort to
minimize the reach of SJP’s protest activities.” Id., ¶ 36. The University “does not
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 2 of 30

3
monitor and deploy law enforcement to all events hosted by other students
organizations,” such as Students Supporting Israel (“SSI”), which is “in many ways a
counterpart to SJP, as it engaged in analogous protest activities and advocacy related
to the war in Gaza.” Id. at 8-9, ¶¶ 39-40.
SJP’s protest on October 3, 2024 took place outside of and inside the University
Memorial Center (“UMC”), located on the University campus. Id. at 9-10, ¶ 48. The
UMC was “specifically designated to be a place of collaboration for University of
Colorado students.” Id. at 10, ¶ 49. The UMC is “almost exclusively devoted to
nonacademic student activities, organizations, and services.” Id., ¶ 51. The UMC is
generally open to the public, including nonstudents. Id., ¶ 52. Student organizations
often advertise their organizations and hold events at the UMC. Id., ¶ 54. The UMC
has “long been used as a forum for public protest and debate.” Id., ¶ 55.
On October 3, 2024, the University sponsored a science, technology, and
engineering job fair that took place in the Glenn Miller Ballroom, which is located inside
of the UMC. Id. at 11, ¶ 59. The job fair was planned to start at 10:00 a.m. and end at
4:00 p.m. Id. at 12, ¶ 67. The job fair included companies that have “contributed to the
productions of weapons used by the IDF against Palestinians in Gaza.” Id. at 11, ¶ 60.
SJP planned to protest at the job fair to “publicly object to the United States’ support of
Israel’s campaign and to educate students who may have been unaware of the
companies’ links to the destruction of Gaza.” Id., ¶ 63. SJP advertised the protest. Id.,
¶ 64. Upon learning of the protest, Mr. Cramer, the Dean of Students and Associate
Vice Chancellor for Student Affairs at the University, arranged for law enforcement to
cover the event. Id. at 3, 11, ¶¶ 10, 65.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 3 of 30

4
At approximately 11:00 a.m. on October 3, 2024, SJP members, including Ms.
Rosenfeld, gathered near the main entrance of the UMC to prepare for the protest. Id.
at 12, 13, ¶¶ 66, 71. In preparation for the job fair, the University erected a large tent
enclosure on the South Terrace of the UMC, located near the main entrance. Id. at 12,
¶ 68. The University also erected a barrier that separated the South Terrace from the
walkway in front of the UMC. Id. The layout of the area near the UMC’s main entrance
is depicted below:
Id., ¶ 66. The tent on the South Terrace was “available for use by recruiters attending
the job fair, but the formal event for students was being held indoors in the Glen Miller
Ballroom inside the UMC.” Id., ¶ 69. The SJP members stayed near the main entrance
of the UMC in a manner that did not impede access to the UMC or to the tent. Id. at 12-
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 4 of 30

5
13, ¶ 70. There was sufficient space for students to protest without blocking the door to
enter and exit the UMC or blocking access to the tent. Id. at 13, ¶¶ 72-73.
Ms. Rosenfeld was chosen as SJP’s acting “marshal” during the protest and was
wearing a yellow vest in fulfilling that role. Id., ¶ 74. SJP marshal duties included
“directing students arriving to join the protest, coordinating with any University officials
and/or law enforcement, and otherwise ensuring that the protest runs smoothly.” Id.,
¶ 75. While Ms. Rosenfeld met students participating in the protest near the main
entrance, Mr. Inman “walked the perimeter of the area and gathered straggler students
who were attempting to find the location for the protest.” Id., ¶ 76.
At approximately 11:30 a.m., at the direction of Mr. Cramer, the University’s
Student Engagement Response Team (“SERT”) explained to the protesters that the
South Terrace was reserved and directed the students to move to the South Lawn to
protest. Id., ¶ 77. SERT informed the protesters that they were allowed to use the
South Lawn from 12:00 p.m. to 1:00 p.m. for their protest. Id., ¶ 79. SJP members
complied and moved to the South Lawn. Id., ¶ 80. Two counter-protesters arrived and
moved to the South Lawn. Id. at 14, ¶ 81. From the South Lawn, protesting students
were not visible to recruiters and students entering the job fair, as they would have been
from the main entrance. Id., ¶ 84.
SJP displayed a large banner that identified SJP and stated, “Free Palestine,
End the Occupation,” along with additional, smaller signs. Id., ¶ 85. At approximately
11:30 a.m., SJP began to chant statements such as, “No more money for Israel’s
crimes” and “[t]he occupation has got to go.” Id., ¶ 86. At approximately 11:45 a.m., Mr.
Inman rejoined the group of protesters. Id., ¶ 87. At approximately 12:00 p.m.,
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 5 of 30

6
protesting students began to use a bullhorn to amplify their chants as allowed by CUUF
procedures and as explained to SJP. Id., ¶¶ 88-89. Mr. Inman used the bullhorn and
stated that he was “going into the career fair if you want to join me.” Id., ¶ 91.
Ten students followed Mr. Inman and Ms. Rosenfeld towards the UMC, with Mr.
Inman walking in front with the bullhorn. Id. at 14-15, ¶ 92. At least one of the counter-
protesters followed the group while filming. Id. at 15, ¶ 93. 	SJP entered the UMC
through the main entrance and turned right down a hallway leading to Glenn Miller
Ballroom. Id., ¶ 94. A woman, who appeared to be assisting with the job fair, attempted
to stop SJP’s procession and prevent the group from entering Glenn Miller Ballroom. Id.
at 14-15, ¶ 96. Other administrators also attempted to stop the students from entering
Glenn Miller Ballroom. Id. Without touching the administrators, the students walked
approximately ten feet into Glenn Miller Ballroom. Id. at 16, ¶¶ 97, 98.
In Glenn Miller Ballroom, there were approximately three hundred people, mostly
consisting of students meeting with recruiters. Id., ¶ 99. Mr. Inman, through the
bullhorn, stated that “there are corporations profiting from the genocide in Palestine
here today.” Id., ¶ 100. The students in Glenn Miller Ballroom continued meeting with
recruiters, notwithstanding Mr. Inman’s statement. Id., ¶ 101. Glenn Miller Ballroom
was loud because students were busy speaking with recruiters. Id., ¶ 102. Only
students and recruiters within an approximately 25-foot radius could hear what Mr.
Inman was saying and only the people “very close to the Ballroom Entrance, within an
approximately 10-foot radius, appeared to pay any attention at all to the
announcement.” Id. at 17, ¶¶ 103-104. A nearby person in the crowd responded to Mr.
Inman’s announcement, stating that they were in a “professional space” and indicated
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 6 of 30

7
that SJP should leave. Id., ¶ 105. Mr. Inman responded that it was “not very
professional to kill children.” Id., ¶ 106.
An administrator and law enforcement officer approached the group and
requested that they leave the building. Id., ¶ 107. Ms. Rosenfeld spoke to the
administrator and law enforcement officer to confirm whether the request was an official
order. Id., ¶ 108. The law enforcement officer told Ms. Rosenfeld that he was giving
SJP students a lawful order to leave Glenn Miller Ballroom. Id., ¶ 109. Ms. Rosenfeld
informed Mr. Inman of the law enforcement officer’s statement, and Mr. Inman
concluded his statement and left the building. Id., ¶ 110. Less than one minute elapsed
between the law enforcement officer ordering SJP to leave the building and plaintiffs’
compliance with that order. Id., ¶ 111. Less than four minutes elapsed between
plaintiffs entering the UMC and exiting to return to the South Lawn. Id., ¶ 112. Once
SJP returned to the South Lawn, the group continued to hold signs and chant for
approximately ten minutes before concluding the protest. Id., ¶ 113. All the while, SJP
was being followed by “pro-Israel counter-protesters.” Id.
On October 4, 2024, the day following the protest, University administrators
placed SJP in bad standing. Id. at 18, ¶ 114. University administrators cited alleged
violations of CUUF procedures, including disruption of the job fair and use of amplified
sound, as the reason for placing SJP in bad standing. Id., ¶ 115. The bad standing
designation effectively barred SJP from operating as a recognized student organization.
Id., ¶ 116. On October 4, 2024, Holly Nelson, Deputy Dean of Students and Assistant
Vice Chancellor for Student Affairs, initiated Student Code of Conduct proceedings
against plaintiffs. Id. at 3, 18, ¶¶ 11, 118. Mr. Cramer directed Ms. Nelson to initiate the
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 7 of 30

8
proceedings. Id. at 18, ¶ 119. Ms. Nelson issued written notices 2 to each plaintiff of the
Student Code of Conduct charges, including alleged “Interference, Obstruction, or
Disruption of CU Boulder Activity,” “Unauthorized Access,” “Fire Safety – Blocking or
Barring an[ ] Exit,” and “Violation of [CUUF Procedures].” Id., ¶ 120. The notices also
stated the following:
I am excluding you from the University of Colorado Boulder, effective today,
October 4, 2024, pursuant to Section L(2) of the Student Code of Conduct. This
interim exclusion means that you are now excluded from the entire campus, on-
campus housing, and any University activities. During this time, you may attend
classes and must arrive no earlier than 10 minutes before class and leave no
later than 10 minutes once the class is concluded.
. . .
Your unauthorized presence on campus will be considered trespassing and will
result in the notification of law enforcement. Any further violations of the Student
Code of Conduct may jeopardize your status as a student.
2 Plaintiffs attach to their response the written notices. See Docket Nos. 52-1–2.
Generally, a court should not consider evidence beyond the pleadings when ruling on a
12(b)(6) motion. The Tenth Circuit has recognized a “limited exception” to this rule: the
“district court may consider documents referred to in the complaint if the documents are
central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019);
see also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th
Cir. 1997) (recognizing that “if a plaintiff does not incorporate by reference or attach a
document to its complaint, but the document is referred to in the complaint and is
central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to
the court to be considered on a motion to dismiss”). A court has “broad discretion in
determining whether or not to accept materials beyond the pleadings.” Lowe v. Town of
Fairland, 143 F.3d 1378, 1381 (10th Cir. 199). The Court finds that the notices are
central to plaintiffs’ claims because they imposed the interim measures that plaintiffs are
challenging on First Amendment and due process grounds. The parties do not dispute
the authenticity of the notices. Therefore, the Court will exercise its discretion to
consider the notices. The Court further notes that, “[w]here a complaint references
extrinsic documents which contradict other general allegations in the complaint, a court
is not obliged to accept the contradicted allegations as true.” Openwater Safety IV, LLC
v. Concept Special Risks, Ltd, No. 18-cv-01400-NYW, 2018 WL 11435659, at *5 (D.
Colo. Dec. 12, 2018) (citation omitted).
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 8 of 30

9
Interim measures remain in effect until you are otherwise notified by Student
Conduct and Conflict Resolution. Any non-compliance with these interim
measures or violation of the Student Code of Conduct may jeopardize your
status as a student.
Id. at 18-19, ¶¶ 121-122. The notices did not provide an opportunity for a hearing or
appeal to challenge the interim exclusions. Id. at 19, ¶ 123. The interim exclusion of a
CU Boulder student is “seldom imposed except where the student is credibly alleged to
the be perpetrator of physical or sexual violence, stalking, or repeated materially
disruptive behavior.” Id., ¶ 124. Plaintiffs had no prior disciplinary violations on their
respective student records before the October 3, 2024 protest. Id., ¶ 125. Plaintiffs are
“unaware of any other CU Boulder students that have been excluded from campus on
an interim basis pending the investigation of a nonviolent first-time student conduct
offense.” Id., ¶ 126.
The notices mentioned bystanders’ negative reactions to plaintiffs’ protest and
administrator’s fear that “several employers, including employers that hire a significant
number of CU students and partner research grants, may pull out of future career fairs.”
Id. at 20, ¶ 129. The notices “heavily cited” Mr. Cramer’s report of the incident. Id.,
¶ 130. Mr. Cramer stated in his report, “we knew, based on the chalking, that the goal
of the protests was to express opinions against some of the companies at the Career
Fair” and in turn decided, “that in this case, we would ask [SJP] to move from the south
terrace to the south lawn . . . .” Id. Mr. Cramer report contained the following
observations:
a. Defendant Cramer’s reported observation that “all interviews and
student/employer interactions had ceased, and the attention was solely focused
on the protesters,”
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 9 of 30

10
b. His observation that “several students . . . appeared to be trying to exit but
were unsure of how to do so given the situation,”
c. His observation that “the event was forced to halt its operations during the
disruption,”
d. That protesters “bypassed [a] line of students waiting to check-in for the
event” and “forced their way through[ the doors], pushing past staff,” and
e. That “[m]any students were prevented from entering the event . . . while the
fair was occupied by protesters.”
Id., ¶ 131.
After receiving the notices, plaintiffs asked Ms. Nelson for status updates on their
interim exclusions and clarification on the exclusions’ scope. Id. at 21, ¶ 133. For
instance, plaintiffs asked Ms. Nelson whether the exclusions prohibited them from
working scheduled shifts at their respective on-campus jobs. Id., ¶ 134. On each
occasion, Ms. Nelson “rebuffed or ignored plaintiffs” requests.” Id., ¶ 135. Due to the
interim exclusions, plaintiffs were prohibited from attending the on-campus portions of
their jobs. Id., ¶ 140.
Mr. Cramer filed a police report against plaintiffs. Id. at 21-22, ¶ 141. The police
report alleged the following:
inference with staff, faculty, or students of an educational institution; trespass
within public buildings; harassment, strikes, shoves, or kicks with intent to
intimidate or harass another person, in whole or in part, because of that
person’s actual or perceived race, color, religion, ancestry, national origin,
physical or mental disability, sexual orientation, or transgender identity; and
unlawful conduct on public property.
Id. at 22, ¶ 142. The Boulder District Attorney’s Office has not prosecuted plaintiffs. Id.,
¶ 143. Defendants did not lift the exclusions until November 25, 2024. Id., ¶ 146.
For the Fall 2024 semester, plaintiffs paid more than $800 in mandatory student
fees, including an “Art and Cultural Enrichment Fee,” “Athletic Fee,” “Student Activity
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 10 of 30

11
Fee,” recreation center fees, and other on-campus nonacademic benefits. Id. at 22-23,
¶ 150. Despite being prohibited from accessing on-campus benefits from October 4,
2024 to November 25, 2024, plaintiffs have not received any refund of the
aforementioned fees. Id. at 23, ¶ 151.
II. 	LEGAL STANDARD
A. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 11 of 30

12
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
B. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified
immunity challenge still does not have a heightened pleading standard. Currier v.
Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 12 of 30

13
immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show
(assuming they are true) that the defendants plausibly violated their constitutional
rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v.
Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When
a defendant raises the defense of qualified immunity, a “plaintiff carries a two-part
burden to show: (1) that the defendant’s actions violated a federal constitutional or
statutory right, and, if so, (2) that the right was clearly established at the time of the
defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017)
(internal quotation marks omitted). Courts are “permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case.” Pearson, 555
U.S. at 236.
III. 	ANALYSIS
Plaintiffs bring claims for First Amendment retaliation pursuant to 42 U.S.C.
§ 1983 against Mr. Cramer and Ms. Nelson, in their individual capacities, for money
damages and against Mr. Schwartz, in his official capacity, for injunctive relief (Claim
One); violation of the First Amendment right to freedom of speech and assembly
pursuant to § 1983 against Mr. Cramer and Ms. Nelson, in their individual capacities, for
money damages (Claim Two); violation of the Fourteenth Amendment right to due
process against Mr. Cramer and Ms. Nelson, in their individual capacities, for money
damages (Claim Three); violation of Colo. Rev. Stat. § 23-5-144 against the University
for injunctive relief (Claim Four); and breach of contract against the University for
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 13 of 30

14
injunctive relief (Claim Five). Docket No. 22 at 23-28. Defendants move to dismiss all
of plaintiffs’ claims. See generally Docket No. 33.
A. Claim One – First Amendment Retaliation
In Claim One, plaintiffs allege that Mr. Cramer and Ms. Nelson retaliated against
plaintiffs for their protest on October 3, 2024 at the job fair by imposing the interim
exclusions and filing the police report. Docket No. 22 at 23, ¶¶ 155, 158. Generally,
“the First Amendment prohibits government officials from subjecting an individual to
retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct.
1715, 1722 (2019) (internal quotation marks omitted). To establish a First Amendment
retaliation claim, a plaintiff must demonstrate (1) that he or she was engaged in a
constitutionally protected activity; (2) that the defendant’s action caused him or her to
suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity; and (3) that the defendant’s actions were substantially motivated as a
response to plaintiff’s exercise of his or her First Amendment speech rights. Becker v.
Kroll, 494 F.3d 904, 925 (10th Cir. 2007).
The Court considers the first element, whether plaintiffs were engaged in a
constitutionally protected activity at the job fair. To determine whether plaintiffs’ speech
is protected by the First Amendment, the Court must determine whether the UMC is a
traditional public forum, designated public forum, or nonpublic forum. See Church on
the Rock v. City of Albuquerque, 84 F.3d 1273, 1278 (10th Cir. 1996) (“The
government’s ability to restrict protected speech by private persons on government
property depends, in part, on the nature of the forum.”). While the complaint alleges
that the UMC is a traditional public forum or designated public forum, see Docket No. 22
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 14 of 30

15
at 11, ¶ 58, the allegations are consistent with the UMC being a designated public
forum. Traditional public fora are those that “have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.” Brewer v.
City of Albuquerque, 18 F.4th 1205, 1219 (10th Cir. 2021) (citation omitted). On the
other hand, “[a] designated public forum is public property, not constituting a traditional
public forum, which the government has intentionally opened to the public for
expressive activity; so long as the government keeps this property open to expressive
activity, it is bound by the same standards as apply in a traditional public forum.” Id. at
1219 n.12 (internal quotations and citation omitted). “[D]esignated public fora are
places that are not generally open to the public for First Amendment activity and are
created by purposeful governmental action to allow speech activity.” Evans v. Sandy
City, 944 F.3d 847, 853 (10th Cir. 2019) (internal quotation and citation omitted). The
UMC was “specifically designed to be a place of collaboration for University of Colorado
students.” Docket No. 22 at 10, ¶ 49. The complaint alleges that the UMC has “long
been used as a forum for public protest and debate.” Id., ¶ 55. The complaint alleges
that the UMC is generally “open to the public, including nonstudents” and that “[s]tudent
organizations often . . . hold events at the UMC.” 	Id., ¶¶ 52, 54. However, “publicly
owned or operated property does not become a ‘public forum’ simply because members
of the public are permitted to come and go at will.” Hawkins v. City & Cnty. of Denver,
170 F.3d 1281, 1287 (10th Cir. 1999) (citation omitted). Based on these allegations, the
Court finds that the UMC is a designated public forum. See Church on the Rock, 84
F.3d at 1278 (“University facilities opened for meetings of registered student
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 15 of 30

16
organizations qualify as a designated public forum.”); Hawkins, 170 F.3d at 1287
(“designated public fora include: state university meeting facilities expressly made
available for use by students”).
“Designated public fora differ from traditional public fora in that a State is not
required to indefinitely retain the open character of the facility.” Wells v. City & Cnty. of
Denver, 257 F.3d 1132, 1145 (10th Cir. 2001) (internal quotation, alteration, and citation
omitted). Thus, the state “may instead choose to convert a designated public forum
back into a non-public forum because the government retains the choice regarding the
status of its forum.” Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d
314, 323 (D.C. Cir. 2018) (internal quotation and citation omitted).
The Court finds, based on the allegations in the complaint, that the University
closed the Glenn Miller Ballroom (the “Ballroom”) for the job fair and thus it was a
nonpublic forum at the time of plaintiffs’ protest. “The government may limit speech in a
nonpublic forum to reserve the forum for the specific official uses to which it is lawfully
dedicated.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997). In a nonpublic
forum, the government can restrict access entirely “as long as the restrictions are
reasonable and are not an effort to suppress expression merely because public officials
oppose the speaker’s view.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 800 (1985) (internal quotation, alteration, and citation omitted).
The complaint alleges that the South Terrace was reserved for purposes of the
job fair and a barrier was erected separating the South Terrace from the rest of the
UMC. Docket No. 22 at 12, 13, ¶¶ 68, 77. “Reserving” a space for a nonpublic event
and then erecting a barrier between that space and public space is inconsistent with the
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 16 of 30

17
South Terrace being a traditional public forum. The complaint alleges that the job fair
was a “formal event for students.” Id. at 12, ¶ 69. Thus, the job fair was not open to the
public but rather was open to students attending the job fair. The notices of the interim
measures that the plaintiffs ask the Court to consider provide further support for the fact
that the Ballroom was a nonpublic forum, stating that students were required to “check-
in to the event” by presenting their “BuffOne Card” or “another form of ID” if the attendee
was an alumni. See Docket No. 52-1 at 2. Only once “student or alumni status was
verified” were attendees permitted to enter the Ballroom. See id. The complaint’s
allegations show that plaintiffs did not attempt to check-in as required for job fair
attendees and that administrators attempted to stop plaintiffs from entering. See Docket
No. 22 at 15-16, ¶¶ 96-97.
Because the Ballroom was a nonpublic forum, “restrictions on expressive activity
need only satisfy a requirement of reasonableness.” Mocek v. City of Albuquerque, 813
F.3d 912, 930 (10th Cir. 2015) (internal quotation and citation omitted). The Tenth
Circuit has acknowledged that most other circuits have held that whether the
government’s restrictions are reasonable is relevant for purposes of a First Amendment
retaliation claim. See id. at 931. “The reasonableness of the Government’s restriction
on speech in a nonpublic forum must be assessed in light of the purpose of the forum
and all the surrounding circumstances.” Hawkins, 170 F.3d at 1289 (alteration and
citation omitted). Given that the purpose of the Ballroom at the time of the protest was
to facilitate the job fair, the Court finds that it was reasonable for the University to order
that plaintiffs leave the job fair after they entered the Ballroom without showing
identification, without properly checking in, and, once inside, used a bullhorn. The Court
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 17 of 30

18
finds that it was reasonable for the University to restrict plaintiffs’ protest to areas near
the UMC, namely, the South Lawn. See Cornelius, 473 U.S. at 809 (“The First
Amendment does not demand unrestricted access to a nonpublic forum merely because
use of that forum may be the most efficient means of delivering the speaker’s
message.”). The University did not ban plaintiffs’ speech on the day of the protest, but
rather only restricted plaintiffs from engaging in their protest in the Ballroom and
required plaintiffs to protest on the South Lawn. See Docket No. 22 at 17-18, ¶¶ 107-
113.
However, plaintiffs do not base their claims directly on their exclusion from the
Ballroom or being restricted to the South Lawn to protest, but rather focus on the
punishment that the University imposed on them afterwards, namely, the interim
exclusions. On October 4, 2024, the University sent plaintiffs written notices of the
Student Code of Conduct charges they were facing and the interim exclusions that were
being imposed due to plaintiffs’ conduct on October 3, 2024. Id. at 18-19, ¶¶ 118-122.
Plaintiffs claim that the University imposed these exclusions in retaliation for plaintiffs’
protected activity. See id. at 23, ¶ 158. The complaint alleges that the interim
exclusions were based upon violations of the Student Code of Conduct. See id. at 18,
¶¶ 115, 120. While these regulations are content and viewpoint neutral, plaintiffs argue
that the Student Code of Conduct charges were enforced against plaintiffs based on
their viewpoints. See Docket No. 52 at 11. “Courts have recognized that selective
enforcement of a neutral and facially constitutional law may run afoul of the First
Amendment if the government’s enforcement choices turn on the content or viewpoint of
speech.” Fuller v. Salt Lake City, 775 F. Supp. 3d 1212, 1224 (D. Utah 2025) (internal
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 18 of 30

19
quotation, alteration, and citation omitted). “[C]ontent-based discrimination is
permissible in a nonpublic forum if it preserves the purpose of the forum.” See
Summem, 130 F.3d at 917. However, even in a nonpublic forum, “when the
government moves beyond restricting the subject matter of speech and targets
particular views taken by speakers on a subject, such viewpoint discrimination is
presumed impermissible.” See id. (internal quotation and citation omitted). The
complaint fails to plausibly allege that the University’s removal of plaintiffs, imposition of
discipline, and filing of the police report was based on their viewpoints. In support of
plaintiffs’ argument, they cite the complaint’s allegation that, at Mr. Cramer’s behest,
SJP protestors were instructed to move to the South Lawn upon Mr. Cramer learning
that the purpose of the protest was to “express opinions against some of the companies
at the Career Fair.” Docket No. 22 at 13-14, 20, ¶¶ 77- 84, 130. The complaint alleges
that the basis for the Student Code of Conduct Charges was not plaintiffs posing “any
continuing threat to persons or property or ongoing threat of disrupting academic
progress,” but rather based on “negative reactions” to plaintiffs’ protest, id. at 19-20,
¶¶ 128-29; that Mr. Cramer’s report of the incident was “unequivocally refuted by
security footage,” id. at 20-21, ¶ 131; that the interim exclusions remained in effect even
after Ms. Nelson reviewed the footage, id. at 22, ¶148; that the notice of charges
identified plaintiffs as SJP leadership and SJP was placed in bad standing, id. at 18,
¶¶ 114-117; that pro-Israel student groups and counter-protesters have received more
favorable treatment from the University, including where a counter-protester walked into
Glenn Miller Ballroom with SJP the day of the job fair, id. at 8-9, 15, ¶¶ 39-40, 93; and
that “the interim exclusion of a CU Boulder student is seldom imposed except where the
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 19 of 30

20
student is credibly alleged to be the perpetrator of physical or sexual violence, stalking,
or repeated materially disrupted behavior.” Id. at 19, ¶ 124.
While these allegations suggest that plaintiffs were punished more severely than
expected, given the conduct that they were accused of and plaintiffs’ lack of disciplinary
history, these allegations do not plausibly allege that the discipline or police report was
based on plaintiffs’ viewpoints. Furthermore, the fact the video footage allegedly
contradicted Mr. Cramer’s account of the protest does not indicate that the interim
exclusions were imposed or that the police report was filed based on plaintiffs’
viewpoints. The investigation into plaintiffs’ conduct being allegedly insufficient, without
allegations that the insufficient investigation was based on a desire to punish plaintiffs
for their SJP-aligned speech, also cannot support plaintiffs’ claim.
In addition, plaintiffs’ allegations regarding the University’s more favorable
treatment of SSI are too conclusory to demonstrate a viewpoint-based restriction on
speech. The complaint does not allege that SSI, or another pro-Israel group, engaged
in similar conduct to SJP on October 3, 2024, namely, entering a job fair not open to the
public and using a bullhorn after being told to limit their protest to another area of the
University. One counter-protester allegedly followed SJP members into the Ballroom to
film, but the complaint does not allege or provide reason to believe that the counter-
protester violated the Student Code of Conduct. Thus, this allegation does not show
that plaintiffs were subjected to the interim exclusions based on the content of their
speech. See id. at 15, ¶ 94. In sum, the complaint does not plausibly allege selective
enforcement of the Student Code of Conduct that “was motivated by the protesters’
message.” See Fuller, 775 F. Supp. 3d at 1225 (finding that “Plaintiffs do not identify
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 20 of 30

21
anything in [defendant’s] email, his deposition testimony, or anywhere else in the record
that could support a justifiable inference that any selective enforcement of the curfew
was motivated by the protesters’ message, as opposed to the violence and destruction
that accompanied the protests on May 30th and June 1st.”).
Plaintiffs’ retaliation claim alleges that the interim exclusions and filing of the
police report were retaliatory acts in response to plaintiffs’ protected speech at the job
fair. Docket No. 22 at 23, ¶¶ 153, 158. Because the complaint fails to allege that their
speech at the job fair was protected under the First Amendment, plaintiffs fail to satisfy
the first element of a First Amendment retaliation claim that they were engaged in
constitutionally protected speech. See Blomquist v. Town of Marana, 501 F. App’x 657,
659 (9th Cir. 2012) (unpublished) (“Because Plaintiffs lacked a First Amendment right to
picket or otherwise occupy the site of the abandoned easement, they cannot establish
that the individual defendants questioned, cited, or arrested them in retaliation for the
exercise of their federal constitutional rights.”). Given that plaintiffs fail to allege a First
Amendment retaliation claim, the Court will dismiss Claim One without prejudice against
Mr. Schwartz, who is sued in his official capacity and thus does not raise the defense of
qualified immunity. See Docket No. 33 at 4-5. The Court finds that Mr. Cramer and Ms.
Nelson are entitled to qualified immunity and will dismiss Claim One against them with
prejudice. 3
3 Courts are “permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case.” Pearson, 555 U.S. at 236. Because plaintiffs fail
to state a First Amendment retaliation claim, it will not address whether plaintiffs’ clearly
established right were violated.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 21 of 30

22
B. Claim Two – First Amendment Freedom of Speech Claim
Plaintiffs claim that the interim exclusions violated plaintiffs’ First Amendment
rights “because they prohibited Plaintiffs from engaging in First Amendment protected
activity on campus.” Docket No. 22 at 24, ¶ 168. The complaint alleges that the interim
exclusions were “intended to suppress Plaintiffs’ speech based on its content, and more
specifically, Plaintiffs’ viewpoint” and that they were “overbroad, unreasonable, and not
narrowly tailored to serve a significant government interest.” Id. at 25, ¶¶ 169-70.
The First Amendment provides that “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I; see also Brewer, 18 F.at 1217; iMatter
Utah v. Njord, 774 F.3d 1258, 1263 (10th Cir. 2014) (“At its core, ‘the First Amendment
reflects a profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open.’” (quoting Boos v. Barry, 485 U.S. 312,
318 (1988))); Pahls v. Thomas, 718 F.3d 1210, 1229 (10th Cir. 2013) (“government has
no power to restrict expression because of its message, its ideas, its subject matter, or
its content.” (quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972))). “By
incorporation through the Fourteenth Amendment, this prohibition applies to states and
their political subdivisions.” Aptive Env’t, LLC v. Town of Castle Rock, 959 F.3d 961,
979 (10th Cir. 2020). “It is axiomatic that the government may not regulate speech
based on its substantive content or the message it conveys.” Swanson v. Griffin, 2022
WL 570079, at *3 (10th Cir. Feb. 25, 2022) (quoting Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 828 (1995).
In order state a First Amendment freedom of speech claim, plaintiffs must show
the interim exclusions prohibited plaintiffs’ protected speech and that, based on the
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 22 of 30

23
nature of the forum where their speech is prohibited, the University’s “justifications for
excluding” plaintiffs fail to “satisfy the requisite standard” associated with the forum at
issue. See Summum, 130 F.3d at 913. The Court finds that plaintiffs’ First Amendment
claim fails because the complaint does not specify the speech that the interim
exclusions allegedly prohibited. Rather, the complaint alleges that the interim
exclusions “prohibited Plaintiffs from engaging in First Amendment protected activity on
campus.” Docket No. 22 at 24, ¶ 168. This conclusory allegation is insufficient to show
that the interim exclusions prohibited plaintiffs’ protected speech. Moreover, the Court
is not obligated to accept this allegation, which is contradicted by the notices. See
Openwater Safety IV, LLC, 2018 WL 11435659, at *5. The interim exclusions explained
in the notices do not mention any protected speech that plaintiffs are prohibited from
engaging in and they do not prohibit plaintiffs from engaging in First Amendment
protected speech while going to, attending, or leaving classes. See Docket No. 52-1 at
7-8. The complaint does not allege that the interim exclusions prevented plaintiffs from
engaging in any particular protected speech. “[T]he First Amendment does not prevent
restrictions directed at . . . conduct from imposing incidental burdens on speech.”
Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). Thus, the Court finds that plaintiffs
fail to allege that interim exclusions prohibited plaintiff’s speech and fail to plausibly
allege that their First Amendment rights were violated. Accordingly, the Court finds that
Mr. Cramer and Ms. Nelson are entitled to qualified immunity and will dismiss Claim
Two.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 23 of 30

24
C. Claim Three – Fourteenth Amendment Due Process Violation
Plaintiffs claim that Mr. Cramer and Ms. Nelson violated plaintiffs’ Fourteenth
Amendment rights by imposing the interim exclusions “without any pre- or post-
deprivation hearing.” Docket No. 22 at 26, ¶ 179. Plaintiffs claim that they “enjoy a
property interest in their status as students and continued education at the university,”
which they were deprived of by the interim exclusions. See id. at 25-26, ¶¶177-180.
1. 	Constitutional Violation
In analyzing a procedural due process claim, “courts must engage in a two-step
inquiry: (1) did the individual possess a protected interest such that the due process
protections were applicable; and, if so, then (2) was the individual afforded an
appropriate level of process.” Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011)
(citation omitted). “The essence of procedural due process is the provision to the
affected party of some kind of notice and some kind of hearing.” Moore v. Bd. of Cnty.
Comm’rs of Cnty. of Leavenworth, 507 F.3d 1257, 1259 (10th Cir. 2007) (internal
alterations, quotations, and citation omitted).
The following factors are relevant to whether an individual was afforded an
appropriate level of process: (1) “the private interest that will be affected by the official
action;” (2) “the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards;”
and (3) “the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.” Hattrup v. United States, 845 F. App’x 733, 737 (10th Cir. 2021) (unpublished)
(quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 24 of 30

25
The complaint alleges that plaintiffs “each enjoy a property interest in their status
as students and continued education at the University.” Docket No. 22 at 25, ¶ 177.
Defendants argue that plaintiffs fail to plausibly allege a protected interest that
implicates their right to due process. See Docket No. 33 at 11. Defendants argue that
“there is no property interest in unfettered access to campus.” Id. at 12.
Plaintiffs have a property interest in their public education. See Gaspar v.
Bruton, 513 F.2d 843, 850 (10th Cir. 1975) (“the State is constrained to recognize a
student’s legitimate entitlement to a public education as a property interest which is
protected by the Due Process Clause and which may not be taken away for mis-
conduct without adherence to the minimum procedures required by the clause”) (citation
omitted). The question is whether the interim exclusions interfered with plaintiffs’
property interest in their education. Pursuant to the interim exclusions, plaintiffs were
only permitted to be on campus to attend classes. Thus, they could not attend the on-
campus portion of their jobs, participate in student groups, or attend other on-campus
events. The Court disagrees that the temporary nature of the exclusions and plaintiffs
being permitted to attend classes means that their property interest was not interfered
with. A campus ban, even if temporary, can nonetheless interfere with a student’s
property interest in the “educational process,” especially where plaintiffs were banned
from campus for nearly two months. See Goss v. Lopez, 419 U.S. 565, 576 (1975)
(holding that a school suspension of 10 days interfered with plaintiffs’ property interest
in their publication education). Furthermore, students’ interest in their public education
extends beyond being able to attend classes. The “educational process” is “a broad
and comprehensive concept with a variable and indefinite meaning.” See Albach v.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 25 of 30

26
Odle, 531 F.2d 983, 985 (10th Cir. 1976). “It is not limited to classroom attendance but
includes innumerable separate components, such as participation in athletic activity and
membership in school clubs and social groups, which combine to provide an
atmosphere of intellectual and moral advancement.” Id.; see Caldwell v. Univ. of New
Mexico Bd. of Regents, 679 F. Supp. 3d 1087, 1170 (D.N.M. 2023) (finding that
plaintiffs’ “campus ban interferes with the educational process[ ] entirety, and not just a
single component, because [plaintiff] can attend only one in-person class, and cannot
participate in school athletics, school clubs, or social groups”) (footnote omitted).
Accordingly, the Court finds that defendants interfered with plaintiffs’ property interest in
their public education. 4
Turning to whether plaintiffs were afforded an appropriate level of process, the
complaint alleges that defendants did not afford plaintiffs an opportunity to be heard and
that they were not afforded any pre- or post-deprivation hearings. Docket No. 22 at 25-
26, ¶¶178-179. The notices received by plaintiffs did not provide an opportunity for a
hearing or appeal to challenge the interim exclusions. Id. at 19, ¶ 123. “At the very
minimum . . . students facing suspension and the consequent interference with a
protected property interest must be given some kind of notice and afforded some kind of
4 The complaint alleges that the interim exclusions interfered with plaintiffs’ liberty
interests. See Docket No. 22 at 25-26, ¶¶ 178-179. “The Due Process Clause also
forbids arbitrary deprivations of liberty. Where a person’s good name, reputation,
honor, or integrity is at stake because of what the government is doing to him, the
minimal requirements of the Clause must be satisfied.” Goss, 419 U.S. at 574 (internal
quotations and citation omitted). The complaint does not allege that the interim
exclusions resulted in damage to plaintiffs’ good name, reputation, honor, or integrity.
Furthermore, in response to defendants’ motion to dismiss, plaintiffs only contend that
the interim exclusions interfered with a property interest in their public education. See
Docket No. 52 at 12-14. Accordingly, the Court only considers plaintiffs’ property
interest in analyzing their due process claim.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 26 of 30

27
hearing.” Goss, 419 U.S. at 579. 5 Defendants do not contend that they provided
plaintiffs with process. See Docket No. 33 at 11-13.
Because plaintiffs have plausibly alleged that Mr. Cramer and Ms. Nelson
interfered with their property interest, without affording plaintiffs process, they have, at
this stage of the case, plausibly stated a Fourteenth Amendment due process claim.
2. 	Clearly Established
The Court finds that plaintiffs had a clearly established right to due process upon
imposition of the interim exclusions. It was clearly established that plaintiffs have a
property interest in their public education that encompasses, not only their interest in
attending classes, but also their interest in other on-campus aspects of their education
“which combine to provide an atmosphere of intellectual and moral advancement.” See
Albach, 531 F.2d at 985. It was clearly established that the interim nature of the
exclusions does not change this property interest. See Goss, 419 U.S. at 581
(“Students facing temporary suspension have interests qualifying for protection of the
Due Process Clause”). Because Mr. Cramer and Ms. Nelson interfered with plaintiffs’
property interest, it was clearly established that plaintiffs were entitled to process which,
5 The Court notes that the notices imposing the interim exclusions indicated that
a “resolution meeting” was scheduled for Wednesday, October 9, 2024. Docket No. 52-
1 at 7. However, the Court finds that the complaint plausibly alleges that no meeting or
hearing was held regarding imposition of the interim measures. The complaint alleges
that the notices did not provide for a hearing or appeal to specifically challenge the
interim measures, and the “resolution meeting” appears to be directed at resolution of
the Student Code of Conduct charges and not the interim measures themselves. See
Docket No. 22 at 19, ¶ 123. The complaint alleges that they requested multiple times to
speak with Ms. Nelson regarding the interim exclusions and that such requests were
“rebuffed or ignored.” See id. at 21, ¶¶ 133-135. Furthermore, the interim measures
were not resolved for two months. Id. at 22, ¶ 146.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 27 of 30

28
at the minimum, had to include notice and a hearing regarding imposition of the interim
exclusions. See id. at 579.
Accordingly, the Court finds that plaintiffs have met their burden to overcome Mr.
Cramer and Ms. Nelson’s qualified immunity defense. The Court will deny defendants’
motion to dismiss Claim Three.
D. Claims Four and Five – Violation of Colo. Rev. Stat. § 23-5-144 and
Breach of Contract
Defendants argue that the Claims Four and Five, which are asserted against the
University, are barred by the Eleventh Amendment. Docket No. 33 at 14. The Eleventh
Amendment bars suit against non-consenting states by private individuals in federal
court. See Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).
However, “a state may waive its sovereign immunity by consenting to suit in federal
court.” MCI, 216 F.3d at 935. The test for determining whether a state consents to suit
is a “stringent one.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 675 (1999) (citation omitted). A “State does not consent to suit in federal
court merely by consenting to suit in the courts of its own creation.” Id. at 676.
Plaintiffs argue that the University consented to suit pursuant to Colo. Rev. Stat.
§ 23-5-144. Docket No. 52 at 15. Colo. Rev. Stat § 23-5-144 states in relevant part:
The first amendment of the United States constitution and article II, section 10 of
the Colorado constitution each protect the right to free speech, including the
speech of students enrolled at public institutions of higher education. The
general assembly declares that it is a matter of statewide interest to protect the
rights of students to exercise their freedom of speech on the campuses of public
institutions of higher education, while recognizing the right of those institutions of
higher education to enact reasonable time, place, and manner restrictions that
preserve their ability to fulfill their educational missions. At the same time, the
general assembly declares that student expression on the campuses of
institutions of higher education is a vital component of the educational
environment at these institutions of higher education and that promoting the free
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 28 of 30

29
and unfettered exchange of ideas in this marketplace of ideas is one way in
which these institutions of higher education fulfill their educational missions.
Colo. Rev. Stat. § 23-5-144(1)(a). Section 23-5-144 further provides that:
Any student who has been denied access to a student forum for expressive
purposes protected by this section may bring an action in a court of competent
jurisdiction to enjoin any violation of this section or to recover reasonable court
costs and attorney fees.
Colo. Rev. Stat. § 23-5-144(6). The Court finds that the University did not consent to
suit pursuant to § 23-5-144. Section 23-5-144’s reference to the U.S. Constitution and
authorizing suits in a court of competent jurisdiction is a not a “clear declaration” that the
University “intends to submit itself” to the federal court’s jurisdiction. See Coll. Sav.
Bank, 527 U.S. at 676 (a state does not consent to suit “even by authorizing suits
against it in any court of competent jurisdiction”) (internal quotations and citation
omitted). Accordingly, the Court will grant defendants’ motion to dismiss Claims Four
and Five. 6
IV. 	CONCLUSION
Therefore, it is
ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ First Amended
Complaint Under F.R.C.P. 12(b)(1) and 12(b)(6) [Docket No. 33] is GRANTED in part
and DENIED in part. It is further
ORDERED that plaintiffs’ first claim is DISMISSED without prejudice against
defendant Schwartz. It is further
6 Plaintiffs concede that “Count 5 should be dismissed without prejudice.” Docket
No. 52 at 16. The Court agrees and finds that the University is immune from suit on
Claim Five because none of the exceptions to Eleventh Amendment immunity apply.
See MCI, 216 F.3d at 935.
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 29 of 30

30
ORDERED that plaintiffs’ first and second claim are DISMISSED with prejudice
against defendants Cramer and Nelson. 7 It is further
ORDERED that plaintiffs’ fourth and fifth claim are DISMISSED without
prejudice.
DATED March 31, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
7 Plaintiffs request that any dismissal be without prejudice due to events that
occurred after the filing of defendants’ motion to dismiss. Docket No. 52 at 15. On May
20, 2025, Ms. Nelson issued a final decisions on plaintiffs’ disciplinary charges. Id. Ms.
Nelson “notably found that Plaintiffs did not materially and substantially disrupt the
career fair.” Id. Plaintiffs contend that this confirms that “the interim exclusion was not
imposed to serve any legitimate disciplinary objective contemplated by Section L(2) of
the Student Code of Conduct.” Id. The Court does not believe this subsequent
development affects the analysis. Generally, a claim that is subject to dismissal based
on qualified immunity should be dismissed with prejudice. See Clark v. Wilson, 625
F.3d 686, 692 (10th Cir. 2010) (instructing the district court to grant defendants’ motion
to dismiss based on qualified immunity “with prejudice”); McCrary v. Jones, 2015 WL
873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where
defendant was entitled to qualified immunity). Thus, the Court finds that dismissal of
plaintiffs’ first and second claim against Mr. Cramer and Ms. Nelson should be with
prejudice.
________________________________
Case No. 1:25-cv-00107-PAB-KAS Document 71 filed 03/31/26 USDC Colorado
pg 30 of 30