Case Explained: MCCOLLOUGH V. PORTLAND STATE UNIVERSITY, ET AL.

Court: United States Court of Appeals for the Ninth Circuit Filed: 2026-07-23 Docket: 3:23-cv-01582-AR The Ninth Circuit affirmed the district court’s dismissal of McCollough’s due process claim but reversed the dismissal of his First Amendment retaliation claim and the grant of qualified immunity to Defendant Jeffords, remanding the case for further proceedings. Regarding the due process claim, the court held that because the Ninth Circuit has not imposed a specific evidentiary standard on public school disciplinary proceedings, the district court correctly dismissed the allegation that the hearing failed to apply a “preponderance” or “substantial evidence” standard. However, the court reversed the dismissal of the First Amendment retaliation claim under 42 U.S.C. § 1983, finding that McCollough sufficiently pleaded that his speech merited protection and that the university’s actions were motivated by his viewpoint. The court applied the standard from *Mahanoy Area Sch. Dist. v. B.L.*, noting that while schools may regulate student speech in limited circumstances (such as lewd content or material disruption), PSU’s rationale that a single email was “upsetting” did not fit these categories, and crude language used to communicate a political point remains protected under *Cohen v. California*. Additionally, the court ruled that McCollough adequately alleged retaliatory motive without needing to prove that an individual official took personal offense, as the disciplinary action could have been motivated by his heated rhetoric on a controversial issue. The court also reversed the qualified immunity ruling for Defendant Jeffords, determining that because there is no clearly established right to discipline students for using profane language in nonpublic communications when such speech is protected, immunity does not apply at the pleading stage. Finally, the court addressed sovereign immunity by reversing the district court’s reliance on outdated precedent; it remanded the issue for application of the controlling *Kohn v. State Bar of California* test to determine if Portland State University qualifies as an arm of the state. The court declined to consider arguments regarding judicial recusal and claims raised for the first time on appeal, including those under the Oregon Constitution and disability discrimination statutes. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.