One of the most contested arenas for free expression today continues to be . . . law schools. From “canceling” expression to using the state to impose sanctions under Title IX (see below), the “free exchange of ideas” is looking more and more like a unicorn on some law school campuses. Yet the First Amendment’s protection of expression and religious exercise will vindicate these protected rights when litigated.

Enter Perlot v. Green. The facts are disturbing though undisputed, as reported by David Lat:

On April 1, the University of Idaho College of Law (“University” or “Idaho Law”) held a “moment of community” in response to an anti-LGBTQ+ slur left anonymously on a classroom whiteboard. Event attendees included plaintiffs Peter Perlot, Mark Miller, and Ryan Alexander, who at the time were law students and members of the Idaho Law chapter of the Christian Legal Society (“CLS”), and Professor Richard Seamon, the CLS faculty advisor.

At the April 1 event, the plaintiffs gathered in prayer to express support for the LGBTQ+ community. After the prayer was over, Jane Doe, a queer female student at Idaho Law, approached the plaintiffs and asked them why the CLS constitution declares that marriage is between one man and one woman. Miller explained that the CLS adhered to traditional biblical views of marriage and sexuality, and he and Jane Doe then debated whether the Bible actually supports such a conclusion. Professor Seamon allegedly affirmed Miller’s explication of the CLS view on marriage.

Soon after the event, Perlot left a handwritten note on Jane Doe’s study carrel, which read in its entirety as follows: “I’m the president of CLS this semester. Feel free to come talk to me if you have anything you need to say or questions you want to ask. I'm usually in my carrel: 6-034. over by the windows. Peter [smiley face].” According to the Idaho Law officials who are the defendants in this case, Jane Doe interpreted the leaving of the note as “violating” her private carrel with “messaging she interpreted as one of the Plaintiffs’ efforts to proselytize about extreme hateful religious dogma that [she] emphatically rejects.”

On April 4, several students staged “walkouts” for two classes taught by Professor Seamon, apparently in response to the views he expressed at the April 1 event. Also on April 4, defendant Lindsay Ewan, deputy director of the law school’s Office of Civil Rights and Investigations (“OCRI”), interviewed Miller about the April 1 event.

On April 7, the University issued no-contact orders to the plaintiff students, after Jane Doe reported to OCRI that plaintiffs’ actions left her feeling “targeted and unsafe.” The orders prohibit plaintiffs from having any contact with Jane Doe without advance permission from OCRI, apply on and off campus, have no end dates, and provide that violation could lead to suspension or expulsion.

OCRI also issued a limited no-contact order against Professor Seamon, after he emailed Jane Doe, a student in one of his classes, and expressed concern for her well-being in the wake of the heated discussion at the April 1 event. The order prohibited Seamon from contacting Jane Doe for anything except “what is required for classroom assignment, discussion, and attendance.” 

For more commentary, see Eugene Volokh.

The District Court dimly viewed the University’s action and entered a preliminary injunction, granting vindication on rationales for both free speech and religious exercise.

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