An Arizona State University student who was removed from her student-radio job after a controversial tweet can pursue a federal lawsuit against the dean of ASU's journalism school, but not ASU, a judge has ruled.
Rae'Lee Klein also won't be getting her job back as former station manager of the student-run Blaze Radio following a separate ruling by the judge. ASU said in a statement that officials are "pleased" by the ruling.
Klein, a journalism student at the Walter Cronkite School of Journalism and Mass Communication, lost confidence of the majority of board members at the student-run station after she offended Black Lives Matter supporters with her August 29 tweet about Jacob Blake, a Wisconsin man who'd been shot in the back by police in front of his son.
"Always more to the story, folks," Klein said in the tweet, encouraging the public to read an article about the sexual assault allegation against Blake that preceded his shooting. "You’ll be quite disgusted."
The board voted to take her out of the position she'd held since the previous year, but could not fire her because she was — and apparently still is — employed by ASU, not the station. She argued that the board should reinstate her, but Cronkite Interim Dean Kristin Gilger soon sent her a letter saying "staying on as station manager is not an option." Gilger informed Klein that she could be reassigned to another student worker position, take a board position in which she'd be required to work on diversity issues, or start her own station.
Klein's situation rose to prominence because it touches on several hot-button issues, including the national reckoning following the May 25 killing of George Floyd in Minneapolis by a police officer, concerns over "cancel culture," and the responsibility of journalists when using social media. After she was ousted, Klein became a national icon for conservatives, while some progressives dismiss Klein as a bigot while backing another ASU student, Alexia Isais, who was fired from ASU's student-run State Press newspaper after tweeting vaguely threatening remarks against law enforcement officials.
In October, Klein (whose full name is Linda Rae'Lee Klein) sued the university, the Arizona Board of Regents, the Cronkite school, and Gilger with the help of local attorney Jack Wilenchik, who take the case pro bono.
In a December 17 ruling, U.S. District Judge Steven P. Logan tossed the case against all of the defendants, except Gilger, "with prejudice," so they cannot be refiled.
"This Court does not have jurisdiction over ABOR, ASU, or Cronkite because of Eleventh Amendment sovereign immunity," Logan wrote. He then outlines why an exception for state officials violating federal law doesn't apply, and why an argument by Klein's side that Arizona law allows the federal lawsuit must fail.
But Gilger's alleged violation of Klein's First Amendment rights means that the dean doesn't benefit from qualified immunity at this stage and be sued in her official and personal capacities, Logan found. Qualified immunity stops citizens from suing government officials over actions they committed while doing their jobs. Three factors must exist in a lawsuit's pleadings to determine whether an official has it: The plaintiff was engaged in a constitutionally protected activity; the "defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity;" and that the protected activity was a substantial or motivating factor in the alleged violation.
Klein didn't make the argument directly to the standard, Logan ruled, "However, drawing a resonable inference, the Court finds it likely that receiving such a message from the dean of one's school would chill a person of ordinary firmness. Plaintiff did allege that she was locked out of her account as a station manager but stated that it was other students that did so, not the school or Gilger."
Because Klein also argued in her lawsuit that Gilger's actions were the direct result of the Jacob Blake tweet, the third element of the standard is fulfilled and the First Amendment claim is "sufficiently plead," meaning it may proceed, Logan wrote.
The next day, December 18, Logan denied Klein's application for an injunction seeking to stop ASU from removing her as Blaze Radio's station manager. Klein's application didn't make clear what kind of relief it sought and cited no Federal Rule of Civil Procedure to provide a basis for the injunction. Logan also chided Klein's lawyer for claiming that a First Amendment violation was clear from "easy facts" in the case.
"Facts are not easy when counsel provides no test under which to apply them," Judge Logan wrote.
Wilenchik explained to Phoenix New Times that the two claims he brought — one for violations of a state law allowing free speech on college campuses, and another for an alleged First Amendment violation — could have begun in state court, but he felt he "was trying to be as efficient as I could possibly be" by taking them straight to federal court, where, because of the First Amendment claim, they would eventually land. Now, he can refile the state law claim against ASU, ABOR, Cronkite, and Gilger in state court, while proceeding against Gilger in federal court, he said.
"The case is where it's always been," he said. "We're invited to proceed to state court where we can get relief faster."
ASU released an upbeat statement about the ruling by attorney (and former Phoenix New Times editor in the early '90s), David Bodney of Ballard Spahr.
"We're pleased with the court's decision dismissing ASU, the Board of Regents and the Cronkite School from this lawsuit 'with prejudice.' We're confident the remaining claim will be resolved favorably in short order as well," Bodney said. "As we've said before, this is not a First Amendment case, but rather a meritless lawsuit. We look forward to resolving this action promptly and constructively."
Gilger didn't respond to a request for comment. The ruling of a lack of qualified immunity keeps the longtime journalism educator in the hotseat. She inherited the temporary position in June after ASU reversed its decision to hire Sonya Forte Duhé of Loyola University as the new dean because of complaints of poor treatment by Black students.
In ASU's 14-page motion to dismiss the lawsuit, which seeks damages from the state university and Gilger, Bodney pointed out that in Gilger's September 17 email to Klein stating she could not be station manager, the interim dean had explained that Klein wasn't being punished for a tweet, but rather because "her relationship with the students responsible for running the station, staff and producers had 'deteriorated to the point that they have lost confidence in [Klein] as a leader.'"
Klein would retain her "title, rank, and pay," as a station manager — just not at at Blaze Radio, the November 6 motion states.
"At bottom," Bodney's motion concludes, "Plaintiff purports to have a 'free speech' right to act as she likes, while remaining entitled to lead a student club after losing the confidence of its members. No law permits such a claim."
Meanwhile, Klein has taken a new job as a news writer for the conservative Campus Reform site, compromising journalism ethics by publishing an article critical of Gilger and the Cronkite school even as she sues them. The December 21 article notes that Gilger honored New York Times Editor Dean Baquet, yet Baquet's statements in support of the Times' 1619 Project "call into question the true journalistic ethics at play for not only Baquet but the New York Times as a whole."
Klein said that Campus Reform pitched the story idea to her after she began freelancing for the site, and she agreed to write it up. She doesn't view the story as being part of her case against Gilger, she said.
Blaze Radio's website still displays her photo and lists her as station manager, and she acknowledged that ASU's still being her for the job.
"I joke it's my hush money," she said. "They're trying to buy my silence."
She hopes that last week's ruling by Logan puts more of the focus on the First Amendment issues of the case, and less on her, personally, she said. But it's clear that many people nationwide were "upset" at her job loss and she's been appreciative of the media interviews and "amazing opportunities" that have opened for her since her story blew up. The support helps her stay focused on her legal fight.
"It's something people feel my passion about — something we'll continue to the very end," she said.
You can read Logan's orders and ASU's motion to dismiss below:
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