On Appeal from District Court of the Virgin Islands District Court No. 3-05-cv-00188 District Judge: The Honorable Curtis V. Gomez.
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: SMITH, CHAGARES, and JORDAN, Circuit Judges
The University of the Virgin Islands ("UVI") charged Stephen McCauley, a UVI student, with violating provisions of its Student Code of Conduct (the "Code") for his alleged harassment of an individual who had accused his friend of rape. In response, McCauley filed a 42 U.S.C. § 1983 suit against UVI; its president, Dr. LaVerne Ragster; and its housing director, Sean Georges, alleging that various Code provisions violated the First Amendment. After a bench trial, the District Court dismissed all claims against UVI because it was not a "person" for purposes of § 1983, determined that Ragster and Georges were acting in their official capacities as UVI employees and were not "persons" for purposes of § 1983, ruled that one Code provision, Major Infraction Paragraph E, was facially overbroad in violation of the First Amendment, and enjoined Ragster and Georges from enforcing the offending paragraph.
McCauley now appeals the District Court's (1) conclusion that UVI, Ragster, and Georges are not "persons" for purposes of § 1983, (2) conclusion that certain Code provisions do not violate the First Amendment, and (3) failure to address his as-applied challenge to Major Infraction Paragraph E, the Code provision UVI charged him with violating.*fn1
After reviewing the record, we agree with the District Court on the first and third issues. UVI is an arm of the Territory of the Virgin Islands and, therefore, not a "person" for purposes of § 1983. Ragster and Georges, as employees of UVI acting in their official capacities, were likewise not "persons" for purposes of § 1983. Adjudication of McCauley's as-applied challenge to Major Infraction Paragraph E was unnecessary because the District Court had already concluded that the paragraph was facially unconstitutional. The District Court went astray, however, in its adjudication of McCauley's other challenges to the Code. Setting aside Major Infraction Paragraph E, two of the four remaining challenged provisions were unconstitutional infringements on students' First Amendment right to free speech. Based on these conclusions we will affirm the District Court in part and reverse in part.
At all times relevant to this appeal, McCauley was a student at UVI, Ragster was the president of UVI, and Georges was the housing director of UVI. During McCauley's time at UVI, the Code governed, inter alia, student speech.
On September 30, 2005, McCauley and other UVI students went to a local beach. Two students who were with McCauley, Josh Carlson and Jenna Piasecki, broke off from the group and a sexual act occurred between them. The next day, Carlson was charged with raping Piasecki. After learning of that charge, McCauley visited Piasecki's dorm room to talk to her about the alleged rape. Piasecki complained to UVI officials after the visit that McCauley harassed her.
Later that month, UVI officials twice warned McCauley to avoid contact with Piasecki. Georges told McCauley that Piasecki had complained of harassment and that he should stay away from her to avoid repercussions under the Code. McCauley was later approached by other UVI officials and was warned to avoid all contact with Piasecki. On or about November 7, 2005, UVI charged McCauley with violating Major Infraction Paragraph E of the Code and began disciplinary proceedings against him.*fn2 Major Infraction Paragraph E prohibits:
Committing, conspiring to commit, or causing to be committed any act which causes or is likely to cause serious physical or mental harm or which tends to injure or actually injures, frightens, demeans, degrades or disgraces any person. This includes but is not limited to violation of the University policies on hazing, sexual harassment or sexual assault.
McCauley pled not guilty to the charge.
Shortly after receiving notice of the charge against him, McCauley filed a § 1983 suit against UVI, Georges, Ragster, and other unidentified defendants for violating his First Amendment rights to free speech and freedom of association. McCauley challenged, inter alia, the constitutionality of Major Infraction Paragraphs C ("Paragraph C"), E ("Paragraph E"), and R ("Paragraph R"), General Infraction Paragraph B ("Paragraph B"), and Minor Infraction Paragraph H ("Paragraph H"). He alleged that all the paragraphs were facially unconstitutional and that Paragraph E was unconstitutional as applied to him.
After McCauley received notice of the charge against him, he was criminally charged with witness tampering, and UVI agreed to postpone its disciplinary hearing against him until the criminal charges were resolved. On March 31, 2009, after the criminal charges were resolved, UVI sent McCauley a second notice of charges, which listed the same charges from the November 2005 notice and added violations of UVI's drug and alcohol policy. The second notice stated that the Paragraph E charge was based on (1) McCauley's visit to Piasecki's dorm room on the day Carlson was charged with rape; (2) an allegedly harassing phone call McCauley made to Piasecki on October 18, 2005; and (3) McCauley's alleged harassment of Piasecki at an off-campus bar on October 20, 2005.
On April 28, 2009, McCauley was found guilty of violating Paragraph E and another paragraph not at issue in this appeal. As punishment, he was ordered to write a letter of apology to Piasecki and pay a $200 fine.
The next month, a non-jury trial was conducted on McCauley's § 1983 action. On August 21, 2009, the District Court: dismissed all claims against UVI because it was not a "person" under § 1983, entered judgment in favor of McCauley on his facial challenge to Paragraph E, enjoined Ragster, as president of UVI, and Georges, as housing director of UVI, from enforcing Paragraph E, and entered judgment in favor of the defendants on McCauley's other claims. McCauley filed a notice of appeal on September 18, 2009.
McCauley asserted facial challenges against Paragraphs B, C, E, H, and R. At trial, he conceded that he had suffered no deprivations from Paragraphs B, C, H, and R. For example, during cross-examination McCauley was asked, "[H]ave you suffered a deprivation in any way in connection with [Paragraph] R?" He replied, "no." McCauley made similar concessions for the other paragraphs.*fn3
These concessions raise concerns about McCauley's standing to assert the claims alleged in his complaint. Because "we are required to raise issues of standing sua sponte if such issues exist," Addiction Specialists, Inc v. Twp. of Hampton, 411 F.3d 399, 405 (3d Cir. 2005) (internal quotation marks omitted), before considering the merits of this appeal, we first consider whether McCauley has standing.*fn4
Our inquiry into Paragraph E is promptly resolved. McCauley obviously has standing to challenge Paragraph E, as UVI charged him with violating that paragraph. The other paragraphs, however, require closer examination. Litigants asserting facial challenges involving overbreadth under the First Amendment have standing where "their own rights of free expression are [not] violated" because "of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Pitt News v. Fisher, 215 F.3d 354, 363 (3d Cir. 2000) ("[W]hen a plaintiff attempts to challenge a statute as being an overbroad restriction on First Amendment rights, the requirement that an impediment exist to the third party asserting his or her own rights should be relaxed[.]") (citing Sec'y of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956-57 (1984)); Amato v. Wilentz, 952 F.2d 742, 753 (3d Cir. 1991) ("The Supreme Court rather freely grants standing to raise overbreadth claims, on the ground that an overbroad . . . regulation may chill the expression of others not before the court.").*fn5
Despite McCauley's trial testimony that he suffered no deprivations from Paragraphs B, H, and R, we conclude that he has standing to challenge those paragraphs. The "judicial prediction or assumption" that Paragraphs B, H, and R "may cause others not before the court to refrain from constitutionally protected speech or expression," Broadrick, 413 U.S. at 612, was not disturbed by McCauley's testimony. Ideally, McCauley would have responded to questions at trial regarding injury by stating that his speech and the speech of other students was chilled by the Code. Yet his failure to provide this lawyerly response is not fatal to his claims, given that we should "freely grant standing to raise overbreadth claims[.]" Amato, 952 F.2d at 753. Paragraphs B, H, and R, all have the potential to chill protected speech. Paragraph B prohibits, inter alia, lewd or indecent conduct. Paragraph H prohibits conduct which causes emotional distress, including "conduct . . . which compels the victim to seek assistance in dealing with the distress." Paragraph R prohibits misbehavior at sports events, concerts, and social-cultural events, including the display of unauthorized or offensive signs. As such, under the "relaxed" rules of standing for First Amendment overbreadth claims, Pitt News, 215 F.3d at 363, McCauley has standing to assert facial challenges to those paragraphs.
McCauley lacks standing to challenge Paragraph C, which requires students to report witnessed violations of Major Infraction Paragraph B. Paragraph C, and its companion paragraph, Major Infraction Paragraph B, state:
B. Assault/Infliction or Threat of Bodily Harm to a Person:
This includes inflicting or threatening to inflict bodily harm or coercing or restraining any person while on or about University premises. This also includes brandishing of weapons.
C. Aiding and Abetting or Complicity in Threatening Bodily Harm and/or Committing Bodily Harm to a Person:
This includes conspiring with or knowingly helping or encouraging another person to engage in the above mentioned behavior violations [in Major Infraction Paragraph B]. Students present during the commission of an act(s) by another which constitutes those kinds of behavior violations mentioned above [in Major Infraction Paragraph B] and who fail to report such act(s) to the proper University authorities shall be guilty of complicity to commit bodily harm to a person.
At trial, McCauley stated that he and other students were harmed by the imposition of Paragraph C's reporting requirement:
THE COURT: Mr. McCauley, when you read paragraph C, is there something you feel you're deprived of? And if so, tell us what it is.
[MCCAULEY]: I believe that just because someone is present when a violation is being committed, but does not report that person, it basically implies that a student has to enforce the provisions of the Code of Conduct at all times, and I don't believe that's necessary.
McCauley's Complaint alleges that Paragraph C requires "students place themselves in harms-way by being compelled to act ...