Ex-student has First Amendment retaliation claim

Where the former medical student alleged that after he questioned and critiqued the theory of microaggression during a panel discussion, he was suspended from the UVA Medical School, required to undergo counseling and obtain “medical clearance” as a prerequisite for remaining enrolled and prevented from appealing his suspension or applying for readmission, he plausibly alleged a claim for First Amendment retaliation.

Background

Kieran Ravi Bhattacharya filed an amended four-count complaint against various individuals at the University of Virginia in relation to his suspension and dismissal from the University of Virginia School of Medicine. Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

First Amendment retaliation

The first prong of the First Amendment retaliation test asks whether the plaintiff “engaged in protected First Amendment activity.” Bhattacharya’s speech at the panel discussion—questioning and critiquing the theory of microaggression—does not clearly fall into any category of speech that UVA Medical School can regulate or prohibit. His expressions were not made at inappropriate times or places nor were his comments disruptive or offensive.

Similarly, even if Bhattacharya’s comments at his suspension hearing were contentious, rude and defensive, they did not materially disrupt the hearing or substantially invade the committee members’ rights. Nor did they “undermine the school’s basic educational mission.”

The second prong of the First Amendment retaliation test asks whether “the defendants took some action that adversely affected [the student’s] First Amendment rights.” Here, defendants issued a professionalism concern card against him, suspended him from UVA Medical School, required him to undergo counseling and obtain “medical clearance” as a prerequisite for remaining enrolled and prevented him from appealing his suspension or applying for readmission by issuing and refusing to remove the no trespass order.

The third prong of the First Amendment retaliation test asks whether “there was a causal relationship between [the student’s] protected activity and the defendants’ conduct.” UVA Medical School suspended him on Nov. 29 —just over a month after the panel discussion and one day after the suspension hearing. UVA issued the NTO against him on Jan. 2, 2019, —just over two months after the panel discussion and one month after his suspension hearing. The court is satisfied that the time that elapsed between Bhattacharya’s protected speech and his suspension and ban from the UVA grounds is sufficient to raise a plausible inference of a causal connection.

The individual defendants argue they are entitled to qualified immunity. However, the ultimate question whether individual defendants in fact violated Bhattacharya’s First Amendment rights by retaliating against him because of his protected speech—and accordingly, whether the First Amendment right violated was clearly established— requires a more developed record.

Due process

Bhattacharya argues that he had a “liberty interest in [his] Protected Free Speech” and a “liberty and property interest in continuing his medical studies at UVA Med School and pursuing the practice of medicine.” He claims that defendants deprived him of these interests without proper notice and the opportunity to be heard.

However defendants’ purported deprivation of Bhattacharya’s free speech interest is not cognizable as a procedural due process claim. Whatever may be Bhattacharya’s free speech rights as a medical student, his interest in continuing his medical studies and pursuing a career in the medical profession “is not itself a free speech interest” cognizable under procedural due process.

Bhattacharya claims a purported liberty and property interest in continuing his studies at UVA Medical School and pursuing the practice of medicine. Assuming such interests are cognizable, this procedural due process claim also would fail.

Conspiracy

Regarding his 1985(3) conspiracy claim, Bhattacharya has expressly acknowledged that the bias against him was not motivated by any discriminatory animus toward his race or national origin. Rather, his contention is that the alleged conspiracy was motivated by animus based on “ideological views.” But this is not the type of class-based discriminatory animus that is cognizable under § 1985(3) in this circuit. And Bhattacharya’s conspiracy claim fails because Peterson, Kern and Rasmussen are protected by the intracorporate conspiracy doctrine, which the Fourth Circuit has applied in the civil rights context.

Bhattacharya alleges that the purported co-conspirators conspired to deprive him “of the ability to complete his medical school studies and enter the medical profession.” His injury to a future interest in employment does not raise a right to relief under Virginia Code § 18.2-499. Moreover this claim fails because Peterson, Kern and Rasmussen’s actions fall under the intracorporate conspiracy doctrine.

Defendants’ motion to dismiss granted in part, denied in part.

Bhattacharya v. Murray, Case No. 3:19-cv-00054, March 31, 2021. WDVA at Charlottesville (Moon). VLW 021-3-133. 39 pp.