Oregon Appeals Court Rules for Student Expelled for Purported Threat

Four years ago, FIRE reported on the case of Henry Liu, a former graduate student who was expelled from Portland State University (PSU) for purportedly threatening to shoot two faculty members. On September 28, the Court of Appeals of the State of Oregon ruled that in the adjudicative hearing that resulted in Liu’s expulsion, PSU failed to follow required procedures under then-existing provisions of Oregon’s Administrative Procedures Act (APA).

In its ruling, the court summarized the facts of the case:

On April 20, 2012, a PSU professor reported that a student had told her that petitioner, a PSU graduate student, had threatened two PSU faculty members. The student reported that petitioner had said of one faculty member, “‘I’m about ready to stick a 45 in his ass,’” and of another, “‘he could get shot.’” Officers from PSU Campus Public Safety, the Portland Police Bureau, and Project Respond [a local mental health crisis response team] went to visit petitioner at his off-campus apartment the same day. Petitioner initially denied having any weapons, but then admitted having guns in the apartment. The officers found four guns, including a .45 caliber handgun and an M4 assault-style rifle, as well as spare magazines, ammunition, knives, and survival and first-aid supplies, including “battlefield dressings,” in the apartment. Petitioner was subsequently “interim suspended” and excluded from campus.

As my colleague Azhar Majeed wrote at the time, the context of Liu’s remarks makes clear that this is one of too many examples of an institution “punish[ing] protected campus expression that is overzealously labeled as a ‘threat.’”

The Oregonian relayed Liu’s explanation that the “stick a 45” comment occurred as he was “confid[ing] his deep disappointment in PSU’s conflict resolution program and his unhappiness with assistant professor Stan Sitnik, who had given him a B-plus instead of the A he thought he deserved.”

Liu denied making the second purported threat, but in any case, “He could get shot” could be reasonably viewed as a threat only in the narrowest circumstances—perhaps from someone known for shooting those who caused him inconvenience. Certainly not from a student complaining about grades, without aggravating factors. And the fact that Liu owned guns doesn’t render any offhand comment about shooting a true threat under the law.

Azhar’s analysis of the facts of the case is still on point:

While the identification of true campus threats is an important and sensitive issue, one need only take a look at our cases at Valdosta State University and the University of Wisconsin–Stout to comprehend the dangers to freedom of speech when universities reach too far and punish speech that cannot in any reasonable way be labeled a true threat.

PSU is a public university bound by the First Amendment, and it therefore cannot lawfully punish speech like Liu’s, which falls far short of the legal definition of “true threats.”

But while PSU’s actions have troubling implications for freedom of speech, last month’s court ruling focused on PSU’s failure to grant Liu a hearing that provided ample procedural safeguards. As the court explained, Oregon’s APA was enacted to provide a number of due process protections in public university adjudicatory hearings that could result in serious punishments like expulsion. After rejecting PSU’s argument that the APA was not applicable to Liu’s case, the court held that PSU’s procedures were not “consistent with” several provisions of the APA. Since PSU’s defense consisted only of two proffered reasons why Liu’s case wasn’t governed by the APA, the court’s analysis on the merits was brief:

Here, it is undisputable that PSU did not follow the contested case procedures of the APA when it expelled petitioner; PSU acknowledges as much. Among other things, petitioner was not allowed to be represented by counsel, ORS 183.417(1), cross-examine witnesses, ORS 183.450(3), or issue subpoenas, ORS 183.440, and the testimony of witnesses was not taken by oath or affirmation, ORS 183.417(6). Consequently, PSU committed legal error when it expelled petitioner, and we reverse and remand for further proceedings.

Unfortunately, the rights afforded to students by Oregon’s APA are not guaranteed to most students in campus hearings nationwide. But strong protections like these are critically important to reaching fair and reliable results. Accordingly, FIRE is glad to see a court recognize that PSU wrongfully deprived Liu of these safeguards.