A federal appeals court grappled with complex constitutional questions Thursday as it considered whether Arizona State University can claim immunity from a lawsuit filed by twenty students suspended after participating in campus protests related to Middle East conflicts.
The case centers on whether Arizona has waived its Eleventh Amendment immunity, which typically shields states from federal lawsuits filed by individuals. The suspended students are challenging disciplinary actions taken against them following an April 2024 campus sit-in that resulted in more than seventy arrests.
The twenty plaintiffs were among those detained by university police during demonstrations opposing United States military aid policies. The protests occurred during a period when the conflict in Gaza had resulted in more than 35,000 Palestinian casualties. University administrators suspended the students for allegedly violating campus anti-camping regulations.
During oral arguments in Phoenix, attorneys representing the Arizona Board of Regents, which oversees the state’s public universities, argued that Arizona has not clearly waived its constitutional immunity. Austin Yost, representing the board, maintained that a 2021 Arizona Supreme Court decision in Redgrave v. Ducey did not address the specific immunity question at issue.
The state’s position is that any waiver of immunity must be explicitly stated in statute. Josh Bendor, another attorney for the state, emphasized that consent to federal court jurisdiction requires unequivocal legislative expression specifying that the state intends to subject itself to such suits.
Plaintiff attorney Michael Yancey countered that the Redgrave decision’s methodology should be applied to determine whether immunity exists. He argued that the Arizona Supreme Court’s reasoning in that case would logically extend to permit state law claims in federal court, even if not explicitly stated.
The judicial panel, consisting of Circuit Judges Andrew Hurwitz, Marsha Berzon, and Ronald Gould, appeared uncertain about how to interpret the state court precedent. Judge Hurwitz questioned how a waiver could be considered clear and unequivocal without explicit language to that effect.
Judge Berzon suggested potentially certifying the question to the Arizona Supreme Court for clarification, though both parties argued such a step was unnecessary. The state characterized the legal question as straightforward, while the plaintiffs expressed confidence their interpretation would prevail.
The dispute originated when U.S. District Judge John Tuchi rejected the state’s motion to dismiss a free speech claim filed under Arizona law. Tuchi concluded that the Redgrave decision effectively waived the state’s immunity, allowing the case to proceed in federal court.
The suspended students, several of whom were scheduled to graduate the following month, initially sought preliminary injunctive relief to participate in their graduation ceremonies. When that request was denied, they pursued monetary damages and formal reversal of all disciplinary actions imposed by the university.
The case highlights ongoing tensions on college campuses regarding protest activities and free speech rights. The students maintain their First Amendment rights were violated, while the university defends its enforcement of campus regulations.
The matter is currently in the discovery phase of litigation, with both parties gathering evidence to support their positions. The appeals court did not indicate when it would issue its ruling on the immunity question, which could significantly impact whether the case proceeds in federal court.
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