Yesterday’s opinion by Judge Steven Merryday (M.D. Fla.) in Tampa Bay Students for a Democratic Society rejects various First Amendment claims stemming from the group’s expulsion by the University, largely for the reasons given in a decision I posted about in January. But it adds the following, responding to the plaintiffs’ conspiracy claims:
The plaintiffs allege in the conspiracy claim (and without factual support) (1) that each defendant acted “outside the course and scope of … employment,” (2) that “[e]ach individual defendant knew or should have known that their actions were in violation of Plaintiffs’ constitutional rights,” and “[i]n the alternative” (3) that “each Defendant acted with callous or reckless indifference [to] the Plaintiffs’ rights.” … In support of their conspiracy claim (or, absent sufficiently particularized facts, their conspiracy theory), the plaintiffs allege:
On May 5, 2024, the Tampa Jewish Community Centers & Federation (JCC) published a letter commending the USF administration for its zero-tolerance approach to Palestinian and allied student organizing against Israel’s actions in Gaza since October 2023, and thanking [President] Law for meeting with them on multiple occasions and “work[ing]” with them to address “anti-Israel activity on campus” by what it called “anti-Israel students and agitators.”
The JCC stated that the USF administration met with the Tampa Jewish Community Relations Council (JCRC) on multiple occasions since October 7, 2023, had been in ‘ongoing contact’ (outside the sunshine) with ‘several key stakeholder groups,’ had met with the Deputy Consul General of Israel for Florida, had watched a 42-minute propaganda film about Hamas, and had been paying for around-the-clock police presence at … Hillel [another Jewish Organization].
Hillel at USF has conspired “behind the scenes” with members of the USF Foundation board to undermine student advocacy led by [SDS] and other groups in support of Palestinian rights.
Upon information and belief, the statement by the JCC states facts, and Defendant Law did indeed maintain “ongoing contact with several key stakeholder groups,” meet with the Deputy Consul General for Florida at the request of the JCC, and take other measures to suppress “anti-Israel activity” on USF’s campus upon the request of the JCC—including the campaign to silence and expel [SDS] for engaging in such “anti-Israel activity.”
The JCC and USF have conspired for over a decade to target and silence pro-Palestinian speech, the Divestment movement, and any speech critical of the Israeli government or US institutions’ complicity in Israel’s crimes.
On or around January 29, 2016, for example, the JCC pledged $25,000 to assist USF Hillel members in opposing the Boycott, Divest and Sanction (BDS) movement on campus, led by [SDS], Students for Justice in Palestine (SJP), and their associates.
In 2023, USF Hillel raised a record breaking $157 million for USF.
The complaint names several Jewish and Jewish-aligned “co-conspirators” (as the plaintiffs label them) and obliquely suggests that their contributions to USF compel the “infer[ence]” of a conspiracy to “violat[e] Plaintiffs’ expressive and associative rights.” Apart from failing to allege any fact supporting the “inference” that any defendant “violat[ed] Plaintiffs’ expressive and associative rights,” the complaint fails to allege an agreement either between the defendants or between any defendant and any so-called “co-conspirator.” {Notwithstanding, of course, the “agreement” to pay for “around-the-clock police presence” at the USF Hillel building.} … “Conclusory allegations of an agreement, without any factual basis to make the allegation plausible, are insufficient to state a conspiracy claim.”
In essence, the plaintiffs argue that every time a Jew or Jewish organization contributes to (in this instance) a public university and that university, acting under established policy, disciplines a student who advocates for, in this instance, “particularly Palestinian” policies, the simultaneous presence of the contribution and the discipline creates a plausible inference of a conspiracy between the contributor and the university to punish the “particularly Palestinian” advocate. Whether properly characterized as paranoid, anti-Semitic, delusional, or merely fantastical, the suggested “inference” is illusory (and likely malignant) and warrants no consideration in a court of the United States.
Richard C. McCrea Jr. and Cayla McCrea Page (Greenberg Traurig) represent defendants.
