Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MACIEJ MURAKOWSKI, Plaintiff, v. UNIVERSITY OF DELAWARE, Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 07-475 MPT

OPENING BRIEF OF MACIEJ MURAKOWSKI IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766 Attorney for plaintiff Maciej Murakowski

Dated: March 17, 2008

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. MR. MURAKOWSKI'S WEBSITE POSTINGS ARE ENTITLED TO FIRST AMENDMENT PROTECTION... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. B. UD IS A STATE ACTOR FOR PURPOSES OF 42 U.S.C. §1983. . . . . . . . . . . 11 MR. MURAKOWSKI'S WEBSITE WAS A LIMITED PUBLIC FORUM ENTITLED TO STRONG FIRST AMENDMENT PROTECTION.. . . . . . . . . . 12 1. The Contents of Mr. Murakowski's Website Are Entitled to the Protections of the First Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 a. b. The Website Did Not Contain Any "True Threats.". . . . . . . . . . . 14 Mr. Murakowski's Statements Do Not Constitute Unlawful Incitement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C.

THE SUSPENSION OF MR. MURAKOWSKI WAS UNLAWFUL PUNISHMENT OF PROTECTED SPEECH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

II. III.

MR. MURAKOWSKI WAS DENIED DUE PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . 24 THE CONVICTION FOR FAILURE TO COMPLY DOES NOT JUSTIFY AFFIRMING THE SUSPENSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 THE COURT SHOULD AWARD MR. MURAKOWSKI HIS COSTS, DAMAGES AND ATTORNEY'S FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 A. B. C. DAMAGES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 ATTORNEY'S FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

IV.

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CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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TABLE OF AUTHORITIES Cases Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 B.V.A. v. Farmington R-7 School Dist., 508 F.Supp.2d 740 (E.D. Mo. 2007). . . . . . . . . . . . . . . 21 Barnes Foundation v. Township of Lower Merion, 242 F.3d 151 (3rd Cir. 2001). . . . . . . . . . . . 27 Boos v. Barry, 485 U.S. 312 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Brandenburg v. Ohio, 395 U.S. 444 (1969).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 College Republicans at San Francisco State University v. Reed, 523 F.Supp.2d 1005 (N.D. Cal. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Colon v. Coughlin, 58 F.3d 865 (2nd Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Donohue v. Baker, 976 F.Supp. 136 (N.D.N.Y. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Eaton v. University of Delaware, C.A. No. 00-709-GMS, 2001 WL 863441, Sleet, J. (D. Del. July 31, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2nd Cir. 2001). . . . . . . . 13 Gomes v. University of Maine System, 365 F.Supp.2d 6 (D. Me. 2005). . . . . . . . . . . . . . . . . . . . 24 Groman v. Township of Manalpan, 47 F.3d 628 (3rd Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . 11 Hess v. Indiana, 414 U.S. 105 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Husain v. Springer, 493 F.3d 108 (2nd Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 In re Douglas D, 626 N.W.2d 725 (Wis. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University, 773 F.Supp. 792 (E.D. Va. 1991), aff'd, 993 F.2d 386 (4th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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Layshock v. Hermitage School Dist., 496 F.Supp.2d 587 (W.D. Pa. 2007). . . . . . . . . . . . . . . . . 22 Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1098 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Roberson v. Hayti Police Dept., 241 F.3d 992 (8th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Saxe v. State College Area School Dist., 240 F.3d 200 (3rd Cir. 2001). . . . . . . . . . . . . . . . . . . . 21 Shuman ex rel. Shertzer v. Penn Manor School Dist., 422 F.3d 141 (3rd Cir. 2005). . . . . . . . . . 11 Springer v. Henry, 435 F.3d 268 (3rd Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Thomas v. Frederick, 766 F.Supp. 540 (W.D. La. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969). . . . . . . . . . . . . . . . . . 21 U.S. v. Baker, 890 F.Supp. 1375 (E.D. Mi. 1995), aff'd, 104 F.3d 1492 (6th Cir. 1997). . . . . . . 17 U.S. v. Francis, 164 F.3d 120 (2nd Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Virginia v. Black, 538 U.S. 343 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Woodfin Suite Hotels, LLC v. City of Emeryville, C.A. No. C 06-1254 SBA, 2007 WL 81911, Armstrong, J. (N.D. Cal. Jan. 9, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Other authorities 14 Del. C. §5101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 18 U.S.C. §875(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. §1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 26 Fed. R. Civ. P. 54(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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NATURE AND STAGE OF THE PROCEEDINGS Plaintiff Maciej Murakowski filed a Verified Complaint in this action on August 1, 2007. Defendant the University of Delaware ("UD") filed an Answer on August 22, 2007. The parties submitted a stipulated Consent Order to the exercise of jurisdiction by the U.S. Magistrate Judge on January 22, 2008. That Consent Order was entered on January 24, 2008. The Court entered a Scheduling Order on October 25, 2007. Supplemental Scheduling Order on February 14, 2008. In accordance with the terms of the Scheduling Order and Supplemental Scheduling Order, Mr. Murakowski filed a Motion for Summary Judgment on March 17, 2008. This is Mr. Murakowski's opening brief in support of that motion. The Court entered a

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SUMMARY OF ARGUMENT 1. UD is a "state actor" subject to liability under 42 U.S.C. §1983 because (i) the

Delaware Code explicitly confers powers on UD to appoint police officers with state law enforcement powers on the UD campus, (ii) the Delaware General Assembly has conferred numerous benefits and requirements on UD throughout the Delaware Code, including grants of tax revenues, (iii) Delaware state courts have recognized that UD is a state actor. 2. UD, by allowing students to utilize its resources to create their own websites, with

no censorship by UD, has created a "limited public forum," and so may not penalize Mr. Murakowski for the content of his website. 3. The contents of Mr. Murakowski's website are entitled to full First Amendment

protection, as they do not contain "true threats," since no reasonable reader could reasonably interpret his writings as a threat to act out violently toward any specific person or group of persons. Nor do Mr. Murakowski's website postings constitute "incitement," as they neither seek nor are likely to results in imminent physical harm to another. 4. UD improperly convicted and punished Mr. Murakowski for the content of his

website, with no evidence of actual or potential material and substantial disruption. 5. UD improperly convicted and punished Mr. Murakowski for disruption based solely

on double hearsay regarding states of mind, with no opportunity for Mr. Murakowski to challenge the witnesses. 6. Mr. Murakowski should be awarded compensatory damages (in the form of lost future

revenue), costs and attorney's fees.

2

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STATEMENT OF FACTS Mr. Murakowski, at the time of the events described herein, was a 19-year old sophomore at UD. (Compl. ¶21). UD is a public, state-sponsored educational institution organized and existing pursuant to Delaware law, specifically 14 Del. C. §5101 et seq. (Compl. ¶3). UD permits its students access to its Internet resources, including granting students the right to set up their own websites. UD's Policy for Student Use of Computing Resources for Home Pages states that "Students may also participate in the exchange of information on the Internet through newsgroups and publish personal home pages on the World Wide Web." The same policy also states that UD "will not impose any restraints on, nor make any effort to monitor the content of, communications other than those imposed by applicable Federal, State or local laws, including laws regarding the right to privacy and laws which prohibit defamatory material." (Compl. ¶7; Murakowski Decl. Ex B2). Mr. Murakowski matriculated and began classes at UD in 2005. In June, 2005, Mr. Murakowski set up a website using UD's server, with the web address http://udel.edu/~kuactet. The website contained essays by Mr. Murakowski on a variety of topics, often adopting a cynical or sardonic or satirical tone. Mr. Murakowski never advertised the existence of this website. (Compl. ¶8; Murakowski Decl. Ex. A).
1

The Verified Complaint filed in this action is cited to herein as "Compl. ¶___." On a motion for summary judgment, a verification has the same effect as an affidavit. Roberson v. Hayti Police Dept., 241 F.3d 992, 994-95 (8th Cir. 2001); Colon v. Coughlin, 58 F.3d 865, 872 (2nd Cir. 1993).
2

The Declaration of Maciej Murakowski, cited to herein as "Murakowski Decl. ___," is appended hereto as Exhibit 1. 3

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Some of these postings also include references to violence and sexual abuse, for satirical or shock effect. For example, in a mock review of Star Wars Episode 3, Mr. Murakowski made reference to a scene where Darth Vader starts shooting and cutting up children. In another mock review of Charlie and the Chocolate Factory, Mr. Murakowski refers to an imaginary scene where Oompa-Loompas are found dead, hanging on a meat hook. (Compl. ¶9). In another posting, commenting on as list indicators for potential rapists found on Wikipedia, such as "extreme emotional insensitivity and egotism," Mr. Murakowski writes, "Reading over those, all I can say is `Shit.' No matter how I interpret them, shit. Don't walk with me at night, ladies." (Compl. ¶10; Murakowski Decl. Ex. A). In another post, Mr. Murakowski described a favored pair of black gloves as "the bitchchokingest gloves in the entire universe." (Compl. ¶11; Murakowski Decl. Ex. A). In a posting dated January 12, 2007, titled "Maciej's Definitive Guide to Sex," Mr. Murakowski lists various imaginary sexual acts, including "The Emo...shake and cry whenever your partner touches you," and "The Good Wife...make dinner," and "The Rocket Scientist...Obtain an advanced degree from a prestigious university. Become a renowned expert in your field." These silly and nonsensical sex acts are mixed with darker and more violent acts such as "The Sociopath...On a Friday night, leave her a trail of rose petals leading to a hot bath. Wash her gently, using oils and scented soaps where appropriate. Dry her, then take her into the bedroom for a sensual massage (be careful, you are not kneading dough!) Kiss her and tell her she is beautiful. Slowly let your hands explore her body. Kiss her some more. Then make sweet gentle love to her for hours. After you both climax, hold her and let her fall asleep in your arms. Then set her on fire," and "The John F. Kennedy...Position your partner halfway on the bed, facing up, so that her legs are hanging 4

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off the edge. You stand facing her, lift her legs, put her ankles on your shoulders, and lean forward as far as you can. Then you kill the President." The piece ends with referring to disposing of the dead body of a sex partner. (Compl. ¶12; Murakowski Decl. Ex. A). On April 19, 2007, Mr. Murakowski's father (who is a research engineer at UD) received a call from Cynthia Cummings, the Vice President of Campus Life. Ms. Cummings expressed her concern about the posting "Maciej's Definitive Guide to Sex," and asked that Mr. Murakowski be removed from campus for the night, and come to see her the next day. (Compl. ¶13). On April 20, 2007, at approximately 3:15 p.m., Mr. Murakowski and his father met Ms. Cummings at her office. Ms. Cummings confronted Mr. Murakowski about the "Maciej's Definitive Guide to Sex" posting. Mr. Murakowski explained that it was a humor piece. Ms. Cummings said "I don't think its funny, and I don't think anyone else does either." Mr. Murakowski responded that he respectfully disagreed. (Compl. ¶14). Ms. Cummings presented Mr. Murakowski a letter, stating that there had been complaints about the website3 because of its "sexually graphic, hostile and violent" content, including "racist, sexist, anti-Semitic, and homophobic statements." The letter went on to state that, because of these reports: "1. 2. You will be charged through the University's judicial system with violating the Responsible Computing Policy. You will be prohibited from staying in your residence hall room or attending classes until you receive a psychiatric assessment.

3

The letter cited two complaints, the first of which was on November 9, 2005, over seventeen months earlier. (Murakowski Decl. Ex. C). 5

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3.

4.

You must provide me with a letter from a licensed mental health provider that indicates that you are not a threat to yourself and to others. You must sign a waiver granting me permission to speak with that licensed mental health provider to confirm his or her conclusions and to learn about any recommendations he or she might have pertaining to mental health treatment."

(Compl. ¶15; Murakowski Decl. Ex. C). Ms. Cummings also presented Mr. Murakowski with a document charging him with one count of violating UD's Disruptive Conduct policy, and one count of violating UD's Responsible Computing and Use of University Computing Resources policy. UD gave the following explanation of the charges in the document: "Mr. Murakowski is alleged to have used University computer resources for non-academic purposes to create a post a website (http://copland.udel.edu/~kuactet). The contents of this site have caused concern and alarm to university community members. The information posted is graphic in nature, violent, derogatory, hostile and disturbing." (Compl. ¶16; Murakowsk Decl. Ex. D).4 Mr. Murakowski asked for permission to return to his dorm room for the purpose of obtaining some items to take with him back to his parents' house. Ms. Cummings granted that permission. Mr. Murakowski returned to his dorm room, picked up some items, and left the campus While there he posted a notice on his door for his friends, telling them that he had been suspended. (Compl. ¶17).

4

Ms. Cummings apparently took a quick disliking to Mr. Murakowski. In an e-mail dated April 20, 2007, the same date as that initial meeting, Ms. Cummings described Mr. Murakowski as "strange; he's a smart aleck; and he thinks he's smarter than everyone else. I don't think that he's a lunatic, but he's definitely maladjusted. He has played too many video games and watched too much pornography." (Murakowski Decl. Ex. H). 6

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On April 23, 2007, Mr. Murakowski was psychologically evaluated by Philip R. Braun, Ph.D. Dr. Braun wrote a letter to Ms. Cummings in which he stated, in pertinent part: Upon my review of his writings and his responses to me during the clinical assessment, I do not believe that this young man is a threat to himself or others. Some of his writings are insensitive and depending on the context in which they are read can be seen as disrespectful to some individuals. While I certainly do not condone such expressions, I do not believe that they reflect any potential for physically acting out against any member of any of the groups referenced in your letter to Mr. Murakowski dated April 20, 2007. (Compl. ¶18; Murakowski Decl. Ex. E). On April 24, 2007, Mr. Murkowski delivered Dr. Braun's letter to Ms. Cummings, and asked for permission to return to his classes and his dormitory room, as the conditions listed in the letter had been met. Ms. Cummings denied the request, stating "I don't care what that letter says, you may not return to class until I say so." Mr. Murakowski then left. (Compl. ¶19).5

5

In discovery responses, UD attempted to explain Ms. Cummings' behavior this way: "The letter provided to the University by Mr. Murakowski and purporting to confirm that he was not a danger to himself or others left some question about whether the psychologist had reviewed all the material that the University had found disturbing. The University therefore contacted the psychologist to confirm what materials he had reviewed, and the psychologist confirmed that he had only reviewed those materials furnished to him by Mr. Murakowski. Concerned that the materials might not have given him the complete picture, the University offered to provide other material from Mr. Murakowski's website. Before that process could be completed, however, the University learned that Mr. Murakowski had violated the instruction to remain out of his dormitory and he was placed on emergency suspension from the residence halls pending the outcome of the Student Judicial hearing. Shortly thereafter, Mr. Murakowski agreed to commute for the remainder of the semester." (Murakowski Decl. Ex. J at 4) Putting aside the question of how did Dr. Braun's letter leave "some question" about what documents he reviewed (other than the fact that Ms. Cummings did not like the result), the fact is that although Ms. Cummings only instructed Mr. Murakowski to show the psychologist the essay "Maciej's Definitive Guide to Sex" specifically, Mr. Murakowski printed out and gave to Dr. Braun all of the essays on his website. (Murakowski Decl. ¶3). UD's response does not make clear (continued...) 7

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As a result of UD's actions, Mr. Murakowski missed classes on April 23, 24, 25 and 26. At around 5:00 p.m., Mr. Murakowski and his father received a call from Ms. Kathryn Goldman, a director of the UD Office of Judicial Affairs, asking them to come to see her. Ms. Goldman told Mr. Murakowski that he could return to attending his classes, but that pending resolution of the charges he could not return to his dorm room and that, based on a report from Ms. Cummings that Mr. Murakowski had returned to his dorm on other occasions, he was also being charged with Failure to Comply. Ms. Goldman handed Mr. Murakowski a letter from her to the same effect. (Compl. ¶20). A hearing on the charges was held on May 2, 2007. Lt. Rahmer, a UD police officer testified that there had been a complaint about Mr. Murakowski's website on April 8, 2007, but that after investigation it was concluded that nothing illegal had occurred. (Compl. ¶21). The only other "witness" to the charge of "Disruptive Conduct" was a female student who claimed to have an "incident" with Mr. Murakowski. However, this student did not testify at the hearing. Instead, an e-mail was submitted by UD as evidence. The e-mail is not from the student, but from a third party, addressed to Holli Harvey, Assistant Director, describing that third party's interaction with the female student. The e-mail stated that the female student was visibly shaking, purportedly arising from an "incident" involving Mr. Murakowski on or prior to April 25, 2007. The

(...continued) whether Dr. Braun was asked what essays (or how many) he reviewed. A more important issue is, if Ms. Cummings truly remained concerned that Mr. Murakowski might be a danger to the community (such that she was not willing to allow him to return to his dormitory and placed a call to Dr. Braun), why did she stop the "process" after Mr. Murakowski agreed to commute and not live in his dorm? How was the community less in danger by Mr. Murakowski being free to roam the campus, but not return to his dorm room? 8

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e-mail does not describe the "incident," nor does it make any reference to Mr. Murkowski's website. (Compl. ¶22; Murakowski Decl. Ex. F). Given that neither the female student nor the author of the e-mail were present at the hearing, Mr. Murakowski had no opportunity to ask either of them questions, to test the validity and reasonableness of any claim that his website grievously affected her. (Compl. ¶23). Several female UD students testified that they were not disturbed or threatened by the content of Mr. Murakowski's website. (Compl. ¶24; Murakowski Decl. Ex.G). On May 23, 2007, the University of Delaware Office of Judicial Affairs issued a letter ruling from Scott F. Mason, University Hearing Officer, addressed to Mr. Murakowski. In the letter, Mr. Mason ruled that Mr. Murakowski was not guilty of violating the Responsible Computing Policy, but was guilty of the Disruptive Conduct Policy and guilty of the Failure to Comply Policy. (Compl. ¶25; Murakowski Decl. Ex. G). Mr. Mason's ruling is littered with references to the content of Mr. Murakowski's website, which he describes as containing "material degrading, demeaning and violent toward women, as well as advocating violence toward others or in general," "racist and/or sexist," "filled with violence," and "even some pieces that may start out wittily or humorously continue to descend into nothing more than a violent end or a violent solution." Mr. Mason's concluded that the content of Mr. Murakowski's website justified a finding of guilty of Disruptive Conduct, stating that "you are responsible for putting the content there and for what outcomes may occur as a result of reviewing the content." Mr. Mason also stated that "even if you content your site is satire that it too could cause the same response, thus being disruptive to the community in which you live." (Id.).

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As a sanction, Mr. Murakowski was suspended from classes and banned from all UD facilities through the end of Fall 2007 and thereafter would be readmitted after reapplying to ID through the Admissions Office. If readmitted, Mr. Murakowski would be banned from all UDowned residence halls through graduation. Additionally, if readmitted, Mr. Murakowski would be placed on "Deferred Expulsion" status, meaning that if Mr. Murakowski were to again be adjudicated as having violated the UD Code of Conduct, he would be expelled. (Id.). In accordance with UD protocol, Mr. Murakowski appealed this ruling. The Appellate Judicial Board rejected his appeal by letter dated July 2, 2007. (Compl. ¶28; Murakowski Decl. Ex. I). His suspension began immediately. (Id.). Mr. Murakowski was permitted to return to UD and begin classes as of the following semester (subject to the restrictions discussed above). However, as a consequence Mr. Murakowski has missed classes that are a requirement for graduation, which may delay his graduation for one year. (Id. ¶5).

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ARGUMENT I. MR. MURAKOWSKI'S WEBSITE POSTINGS ARE ENTITLED TO FIRST AMENDMENT PROTECTION. In order to have a valid civil rights claim under 42 U.S.C. §1983, Mr. Murakowski must establish that (i) he has been deprived of a federal right, and (ii) the party which deprived him of that right acted under color of law. E.g., Shuman ex rel. Shertzer v. Penn Manor School Dist., 422 F.3d 141, 146 (3rd Cir. 2005); Groman v. Township of Manalpan, 47 F.3d 628, 633 (3rd Cir. 1995). As demonstrated below, (i) UD is deemed under law to be a state actor acting under color of law for purposes of 42 U.S.C. §1983, (ii) as UD granted Mr. Murakowski the right to create a website on UD's server expressly providing that there would be no control over content, that website constituted a "limited public forum" entitled to full First Amendment protection, and (iii) UD violated Mr. Murakowski's rights by suspending him for a semester based on the content of his website, and without evidence of material disruption of UD's functions. A. UD IS A STATE ACTOR FOR PURPOSES OF 42 U.S.C. §1983.

Whether UD is a state actor operating under color of state law was resolved in Eaton v. University of Delaware, C.A. No. 00-709-GMS, 2001 WL 863441, Sleet, J. (D. Del. July 31, 2001) (Exhibit 2 hereto). In that case, the Court determined that UD is a state actor acting under color of law for purposes of 42 U.S.C. §1983 because (i) the Delaware Code explicitly confers powers on UD to appoint police officers with state law enforcement powers on the UD campus, (ii) the Delaware General Assembly has conferred numerous benefits and requirements on UD throughout the Delaware Code, including grants of tax revenues, (iii) Delaware state courts have recognized that UD is a state actor. WL Op. at *4. None of the facts have changed since then.

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B.

MR. MURAKOWSKI'S WEBSITE WAS A LIMITED PUBLIC FORUM ENTITLED TO STRONG FIRST AMENDMENT PROTECTION.

UD allows its students access to its servers for the posting of person web pages. The relevant language from UD's Policy for Student Use of Computing Resources for Home Pages is as follows: Because the University recognizes the value of the Internet as a resource for information and communication, when computing resources are available, students may use them for co-curricular or personal purposes provided they abide by the policies and procedures governing such use. * * *

Students may also participate in the exchange of information on the Internet through newsgroups and publish personal homepages on the World Wide Web. * * *

Students are advised to consider the public nature of information they disseminate on the Internet through the World Wide Web. Information in a home page is published and available to everyone who can get to the World Wide Web. Students must not assume that their information is restricted to only a close circle of friends, or even the campus community. The University will not impose any restraints on, nor make any effort to monitor the content of, communications other than those imposed by applicable Federal, State or local laws, including laws regarding the right to privacy and laws which prohibit defamatory material. Users of the University's information systems are advised that their communications are subject to such laws and the consequences of violations can be severe. (Murakowski Decl. Ex. B, italics added). When a public college or university makes a media outlet available to its students, it creates a "limited public forum" which entitles those students to strong First Amendment free-speech protection. As such, UD may not interfere with the viewpoints expressed in said media, and may 12

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not censor, retaliate or otherwise chill the students' speech based on the content or viewpoints expressed through that outlet. Husain v. Springer, 493 F.3d 108, 121-24 (2nd Cir. 2007) (discussing additional case law). As UD has made available its resources to students for publication of their own websites, and as its expressed formal policy is not to censor the content of those websites in any way (other than to avoid violations of law), UD has created a limited public forum which entitles students (including Mr. Murakowski) to strong First Amendment protection, protections equal to that of any citizen: [F]or purposes of First Amendment analysis there are very important differences between primary and secondary schools, on the one hand, and colleges and universities, on the other. As the courts often have acknowledged, the state does not require higher education and has much less interest in regulating it, the students in colleges and universities are not children, but emancipated (by law) adults, and, critically, the mission of institutions of higher learning is quite different from the mission of primary and secondary schools. As courts have emphasized, "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools [of higher learning]." Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (internal citation and quotation omitted). As our highest court has said, "[t]he college classroom with its surrounding environs is peculiarly the `marketplace of ideas....' " Id. Supreme Court precedents "leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large." Id. (internal quotations omitted). Indeed, the core principles of the First Amendment "acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution's educational mission." Doe v. Univ. of Mich., 721 F.Supp. at 863 (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). College Republicans at San Francisco State University v. Reed, 523 F.Supp.2d 1005, 1015-16 (N.D. Cal. 2007). Accord Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 106 (2nd

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Cir. 2001) ("University students' speech deserves the same degree of protection that is afforded generally to citizens in the community...."). 1. The Contents of Mr. Murakowski's Website Are Entitled to the Protections of the First Amendment.

UD appears (from its Fourth Affirmative Defense) to challenge that Mr. Murakowski's website is not entitled to First Amendment protection. Mr. Murakowski anticipates that UD will take the position that some or all of Mr. Murakowski's writings constitute a "true threat," or possibly "incitement," neither of which is not entitled to First Amendment protection. Such position is without merit. Whether given speech is protected under the First Amendment is a question of law. Springer v. Henry, 435 F.3d 268, 275 (3rd Cir. 2006); U.S. v. Francis, 164 F.3d 120, 123 n.4 (2nd Cir. 1999). As demonstrated below, Mr. Murakowski's website did not constitute a "true threat," and does not meet the definition of "incitement," under the strict parameters set down by the courts. a. The Website Did Not Contain Any "True Threats."

"True threats" encompass those statements where the speaker communicates a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat, as long as a reasonable person would conclude that the speaker intended to carry out the threat. Virginia v. Black, 538 U.S. 343, 359-60 (2003). In determining whether a statement constitutes a "true threat," the Court must analyze the statements in context and under all the circumstances to determine whether a reasonable person would construe the statement as a serious expression of a threat to inflict bodily harm. Planned

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Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1098, 1077 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003). The context and surrounding circumstances are as follows: 1. There is no expression of intent by Mr. Murakowski to injure anyone. In "Maciej's

Definitive Guide to Sex," Mr. Murakowski does not state anywhere that he has performed any of the acts described (and indeed concedes at the outset that he is a virgin) or that he will be performing any of these acts in the near future (he writes "I personally won't be having sex anytime soon...").6 As such, there is no threat, either express or implied.7 In "The Relationship Advice Pamphlet," there is nothing that could suggest to a reader that Mr. Murakowski is making a statement of his intentions or intends any harm toward them, as he is merely discussing relationships in general. In "How to Skin A Cat," there is no reference to physical harm to any human. 2. This leaves three essays with references to engaging in violence against women.

However, in none of those essays does Mr. Murakowski indicate that he has any intention of acting on any scenario he describes: a. In "Sexual Assault Awareness," Mr. Murakowski describes "raping some

drunk girl in a dark alley," which he describes as being ironic because he would be wearing a shirt promoting sexual assault awareness. He also reports on possible predictors for being a rapist and,
6

Indeed, assuming the reader has no sense of either humor or reality (see footnote 6), Mr. Murakowski at most merely offers the acts as suggestions for others, as opposed to statements of his intentions.
7

A further indicator is that fact that many of the proposed acts in fact are not sexual acts at all, and so indicate a lack of serious intent. Examples include "The Emo...shake and cry whenever your partner touches you," and "The Good Wife...make dinner," and "The Rocket Scientist...Obtain an advanced degree from a prestigious university. Become a renowned expert in your field." 15

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after listing them he reports, "Reading over those, all I can say is, `Shit.' No matter how I interpret them, shit. Don't walk with me at night ladies." Thus, even if a reasonable reader (with a reasonably developed sense of humor) would not recognize this statement as a sarcastic comment on the overgenerality of such predictors, rather than a threat to anyone, Mr. Murakowski is warning readers to keep away from him, rather than threatening to go after them and harming them. b. In "Happy Birthday to Me," Mr. Murakowski lists among the items he would

want to receive for his birthday (a cane, crutches, wheelchair and cast), "A small Asian girl. I would keep her tied up in the closet (like the brother does with his) and do unspeakable things to her when I got bored." Nowhere in the essay does Mr. Murakowski suggest that he would go out on his own and kidnap an Asian girl, nor is such a sentiment fairly implied. At worst, even if taken as a serious statement, it is a statement of personal taste or desire, with nothing to suggest that Mr. Murakowski intends to act on that desire. c. In "Rub My Belly for Luck," after a discussion of a Stars Wars movie, Mr.

Murakowski refers to a pair of his black gloves by stating: "This is my glove choking a bitch. That bitch has been thoroughly choked. See if you can spot my glove. Hint: it's the one choking him." (Italics added).8 Mr. Murakowski goes on to add: "Apart from keeping my hands warm and being the bitch-chokingest gloves in the entire fucking universe, the gloves make me feel menacing. When I wear them...I forget that I am a spindly pale virgin...." Here, not only is there no suggestion by Mr. Murakowski that he is going to actually seek to choke someone, but he also provides to the reader

8

It should be noted that the term "bitch," in its slang usage, can refer to men as well as women. http://dictionary.reference.com/browse/bitch (printout attached hereto as Exhibit 3). 16

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an indicator that he really does not have the capacity to act on the fantasy because he is a "spindly pale virgin." None of these three essays states or implies any intention to act out any of the things described. To the contrary, their context and indicators reveal that none of this is to be taken literally or even seriously. Mr. Murakowski signals that he lacks the capacity to act out. 3. Even if the Court were to interpret these statements as suggesting an intention

to commit violence, the class of claimed victims is so large and generalized as to preclude a finding of "true threat" under the First Amendment. The statements relate to acts performed against women generally (and in one case a man). There is no qualifier by name, age group, location or anything to narrow it down. Indeed, there is no reference to UD or even to students. Mr. Murakowski has not found any case law which held that a "true threat" can exist where the target is an entire gender, much less all humankind. To the contrary, case law indicates that such a generalized target

precludes a finding of "true threat." In U.S. v. Baker, 890 F.Supp. 1375 (E.D. Mi. 1995), aff'd, 104 F.3d 1492 (6th Cir. 1997), the defendants (one of whom was a college student) were charged with transmitting in interstate commerce via e-mail threats to kidnap or injury another, in violation of 18 U.S.C. §875(c).9 The indictment focused on e-mails between the defendants. The first one read: I highly agree with the type of woman you like to hurt. You seem to have the same tastes I have. When you come down, this'll be fun! Also, I've been thinking. I want to do it to a really young girl first. !3 [sic] or 14. There innocence makes them so much more fun ­ and they'll be easier to control....

9

The issue of what constitutes a "true threat" most commonly is analyzed in the context of such criminal prosecutions. 17

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The second e-mail responded: I would love to do a 13 or 14 year old. I think you are right...not only their innocence but their young bodies would really be fun to hurt. As far as being easier to control...you may be right, however you can control any bitch with a rope and a gag...once tey [sic] are tieed [sic] up and struggling we could do anything we want to them...to any girl. The trick is to be careful in planning. I will keep my eye out for young girls, and relish the fantasy...BTW how about your neighbour at home, youm [sic] may get a chance to see her...?...? The third e-mail replied: True. But young girls still turn me on more. Likely to be nice and tight. Oh, they'd scream nicely too! Yeah. I didn't see her last time I was home. She might have moved. But she'd be a great catch. She's real pretty, with nice long legs, and a great girly face...I'd love to make her cry... Id. at 1387. The bill of particulars identified the targets of these statements as "13 or 14-year old girls who reside in Defendant Jake Baker's neighborhood in Ann Arbor, Michigan, and teenage girls who reside in Defendant Jake Baker's neighborhood in Boardman, Ohio." Id. at 1388. In dismissing this count of the indictment, the Court began with this pertinent observation: The test is not satisfied by finding that the desires expressed in the statement are so deviant that the person making the statement must be unstable, and therefore likely to act in accordance with his or her desires at any moment. Something in the statement itself must indicate some intention imminently to act. Otherwise, the statement may be unsettling or alarming, but is not a true threat for the purposes of the First Amendment. Id. at 1386 n. 16. The Court went on to hold:

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This Count falls short of the constitutional "true threat" requirement. As an initial matter, it does not refer to a sufficient specific class of targets. The more limited class identified in the bill of particulars is not apparent from the face of the communications. Nothing in the exchange quoted in Count I implicitly or explicitly refers to 13 or 14 years old girls in Ann Arbor, nothing in the exchange identifies Boardman, Ohio (Baker's actual home) as the "home" referred to, and nothing in the exchange allows one to determine that the neighbor discussed is a teen-age girl. In reality, the only class of people to whom the messages can be taken to refer is 13 or 14 year old girls, anywhere. This class is too indeterminate to satisfy Kelner's requirement of specificity as to the person threatened, even under the liberal interpretation given the requirement by some courts. As to the content of the messages, Baker's discussing his "tastes" in the first paragraph of his December 1 message does not involve any identifiable threatened action. In the second paragraph of the December 1 message, he expresses a desire "to do it to" a 13 or 14 year old girl. Even assuming that more context could clarify the phrase "to do it," the second paragraph also fails to mention an intention to do anything...Discussion of desires, alone, is not tantamount to threatening to act on those desires. Absent such a threat to act, a statement is protected by the First Amendment. ....It is not constitutionally permissible under Kelner to infer an intention to act on a desire from a simple expression of the desire. The intention (whether or not actually held) must itself be expressed in the statement. Id. at 1388 (italics in original). The Baker decision highlights the flaws in any argument that Mr. Murakowski's statements constitute true threats: the alleged target class (women generally) is too general. Further, there is no statement of any intention to act. As such, Mr. Murakowski's statements constitute protected expression under the First Amendment.

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b.

Mr. Murakowski's Statements Do Not Constitute Unlawful Incitement.

UD may argue that "Maciej's Definitive Guide to Sex" is not protected by the First Amendment because it encourages others to go out and commit the described violent acts. However, nothing in that (or any other) essay demonstrates a threat of imminent violence, and so the argument fails. Speech is outside the protection of the First Amendment where (i) it is directed at inciting or producing imminent lawless action, and (ii) it is likely to incite or produce such action. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). However, words amounting to nothing more than advocacy of illegal action at some indefinite time in the future are not subject to this exception. Hess v. Indiana, 414 U.S. 105, 108 (1973). In the absence of anything indicating a call to immediate unlawful action, there is no basis to conclude that Mr. Murakowski's website is not protected speech because it incites readers to imminent unlawful action. C. THE SUSPENSION OF MR. MURAKOWSKI WAS UNLAWFUL PUNISHMENT OF PROTECTED SPEECH.

The suspension of Mr. Murakowski was punishment because of the content of his website, using the pretext that it was "disruptive." The underlying factual basis for this conclusion was that, our of almost 16,000 students, (i) "the brother of a female student reported...that his sister...and her roommate were disturbed and concerned" about the contents of the website, and (ii) one female student "was so scared for her personal safety and distressed due to [his] postings that she could not focus on her studies and had to drop to `audit' status." (Murakowski Decl. Ex. G at 1). 20

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The term "disruptive" has no clear legal definition. However, it must be interpreted in light of the First Amendment. Under the First Amendment, speech may not be punished merely because it may be upsetting or cause psychological harm to the listener or reader. See Boos v. Barry, 485 U.S. 312, 321 (1988); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (noting the Court's "longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience"). Thus, UD may not punish speech based on the emotive impact its offensive content may have on a reader. Saxe v. State College Area School Dist., 240 F.3d 200, 209 (3rd Cir. 2001). Additionally, it is not enough to claim that one or two students were disturbed by what they read. Instead, UD was obligated to establish material and substantial disruption of the education process. E.g., Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 513 (1969) (in high school context); IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University, 773 F.Supp. 792, 794 (E.D. Va. 1991), aff'd, 993 F.2d 386 (4th Cir. 1993) (college students could not be punished for conduct considered racist and sexist in the absence of "substantial or material disruption of GMU's educational mission"). Mere apprehension of disruption is inadequate. There must be substantial facts which reasonably support a forecast of likely disruption. B.V.A. v. Farmington R-7 School Dist., 508 F.Supp.2d 740, 747 (E.D. Mo. 2007). In the present action, the only "evidence" of disruption is third-hand accounts of a couple of students' subjective emotional reactions to what they read, which does not permit a finding of disruption satisfactory to the First Amendment. There were none of the accepted indicia of disruption. No classes were cancelled, interrupted or prevented from occurring. There was no widespread disorder, or disorder of any kind. (Murakowski Decl. Ex. J at 8). See Layshock v. 21

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Hermitage School Dist., 496 F.Supp.2d 587, 599-600 (W.D. Pa. 2007) (absence of interruption of classes or widespread disorder precluded a finding of substantial or material disruption).10 Nor was there any finding of a potential for disruption, or the identification of any evidence to support such a conclusion. See Saxe, 240 F.3d at 209 (evidence of past disruption for similar speech may provide basis to conclude there was a risk of future disruption). As such, the claim of "disruptive conduct" fails for lack of evidence and lack of constitutional justification. On the other hand, the evidence is clear that UD punished Mr. Murakowski because of the content of his website. The decision of the Office of Judicial Affairs contains several disparaging references to the content of the site: · Mr. Murakowski's website was described as "containing a preponderance of material degrading, demeaning, and violent toward women, as well as advocating violence towards others or in general. Many of the examples contained content that was racist and/or sexist; · "[T]hough the content of your website is not in violation of the use of the University's computing resources, you are responsible for putting the content there and what outcomes may occur as a result of reviewing the content." · "The bottom line is that your web site is filled with violence that created an uncomfortable and disruptive environment in your residence hall." (Murakowski Decl. Ex. G).

10

Indeed, the fact that seventeen months passed between the first and second complaint (Murakowski Decl. Ex. C) strongly evidences the lack of a risk of material disruption. 22

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Thus, the "bottom line" for UD was that Mr. Murakowski's content was offensive to a few students (and, presumably, to the administration).11 The "bottom line" for this Court, however, is that, offensive or not, Mr. Murakowski's content was protected by the First Amendment. There was no evidence of disruption, actual or anticipated, much less substantial and material disruption. As

11

Mr. Mason, the ruling judicial officer, also concluded that Mr. Murakowski's website was not satire, although Mr. Mason's qualifications to make that literary determination were not set forth. (Murakowski Decl. Ex. G). As one source has noted: Because satire often combines anger and humour it can be profoundly disturbing - because it is essentially ironic or sarcastic, it is often misunderstood. In an interview with Wikinews, Sean Mills, President of The Onion, said angry letters about their news parody always carried the same message. "It's whatever affects that person," said Mills. "So it's like, `I love it when you make a joke about murder or rape, but if you talk about cancer, well my brother has cancer and that's not funny to me.' Or someone else can say, `Cancer's hilarious, but don't talk about rape because my cousin got raped.' I'm using extreme examples, but whatever it is, if it affects somebody personally they tend to be more sensitive about it." Common uncomprehending responses to satire include revulsion (accusations of poor taste, or that it's "just not funny" for instance), to the idea that the satirist actually does support the ideas, policies, or people he is attacking. For instance, at the time of its publication, many people misunderstood Swift's purpose in "A Modest Proposal" ­ assuming it to be a serious recommendation of economicallymotivated cannibalism. Again, some critics of Mark Twain see Huckleberry Finn as racist and offensive, missing the point that its author clearly intended it to be satire (racism being in fact only one of a number of Mark Twain's known pet bugbears attacked in Huckleberry Finn). Wikipedia: http://en.wikipedia.org/wiki/Satire#Misconception_of_satire at 6 (footnote omitted) (appended here to as Exhibit 4). 23

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such, the Disruptive Conduct conviction is unconstitutional, in violation of Mr. Murakowski's First Amendment rights, and must be expunged. II. MR. MURAKOWSKI WAS DENIED DUE PROCESS. The scope of due process protection to which a student at a public college or university is entitled in disciplinary proceedings is not fully developed in the law. However, courts do hold that where there is the risk of a serious penalty, such as expulsion or suspension, and where credibility is at issue, a decision against a student may not be based solely on hearsay, and the accused has a right to question the accuser in some manner. See Donohue v. Baker, 976 F.Supp. 136, 147 (N.D.N.Y. 1997); Gomes v. University of Maine System, 365 F.Supp.2d 6, 16 (D. Me. 2005). As to the charge of Disruptive Conduct, the issue was disruption. The "evidence" of disruption was that: · a couple of students were allegedly disturbed by the content. Neither of these students testified. Instead, the brother of one of the students made a report to University Public Safety. The brother did not testify. Instead, a University Public Safety Officer testified as to what the brother said that his sister and her friend told him (Murakowski Decl. Ex. G); and · another student was so scared and distressed by what she read that she could not focus on her studies and had to drop to "audit" status. This student did not testify. Instead, she spoke to Cheryl A. Davis-Robinson, an academic advisor. Ms. Robinson did not testify either. Instead, she sent an unsworn e-mail to Holli Harvey, the "prosecutor," who submitted it as evidence at the hearing. In that e-mail there is nothing explaining what affected the student or why. There was no indication by Ms. 24

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Robinson of any discussion or subsequent investigation of the student's personal history that might provide an alternate explanation for her reaction. (Murakowski Decl. Ex. G). As noted previously, UD did not properly apply the First Amendment test for disruption. However, even if the Court were to disagree, UD convicted Mr. Murakowski of Disruptive Conduct based solely on double-hearsay claims of disruption. There was no effort to examine (even outside of the hearing) any complainant to determine his or her true state of mind (which was the basis for the claim of disruption), or whether the complainant's person circumstances rendered his or her state or mind reasonable. UD will likely argue that it would be unreasonable to require a witness who is scared (albeit unreasonably) to face Mr. Murakowski at a hearing.12 Even accepting that at face value, there were possible alternatives. As one possible example, UD could have offered Mr. Murakowski the opportunity to give the board questions in writing for the witness to respond to in writing under oath. If UD was going to suspend Mr. Murakowski based on absent witness evidence, it had an obligation to come up with some mechanism to protect his rights, and not just those of the absent witnesses, as best as possible. UD's failure to provide any mechanism to test the verity of the complainants' assertions, and their mental well-being, denied Mr. Murakowski due process of law.

12

In fact, a face-to-face meeting between the two of them, under UD's auspices and control, would have been a far better thing than persecuting Mr. Murakowski. Mr. Murakowski testified that he did not intend or desire to upset anyone. (Murakowski Decl. Ex. G). A meeting and an apology, helping relieve the complainant's stress and enabling her to focus again on her studies without fear, might have been beneficial to all and might have avoided all of this. Unfortunately, no one at UD contemplated this non-adversarial approach. 25

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III.

THE CONVICTION FOR FAILURE TO COMPLY DOES NOT JUSTIFY AFFIRMING THE SUSPENSION. UD may argue that, notwithstanding the constitutional violation, the judgment of suspension

(and denial of access to the dormitories upon return) should be upheld because Mr. Murakowski was also found guilty of Failure to Comply. However, Failure to Comply does not carry a mandatory penalty of suspension. Nor does the ruling of the Office of Judicial Affairs indicate how much weight was accorded to the Failure to Comply in determining the penalty. As such, this Court has no basis to conclude that finding of Failure to Comply automatically and of itself would have resulted in the same sanctions as were imposed. If the Court determines that UD violated Mr. Murakowski's First and/or Fourteenth Amendment rights, then the UD's ruling and its sanctions should be declared unlawful and void. If UD thereafter wants to revisit the Failure to Comply issue separately with an impartial tribunal not infected with the belief in the constitutional violation, it is free to do so. IV. THE COURT SHOULD AWARD MR. MURAKOWSKI HIS COSTS, DAMAGES AND ATTORNEY'S FEES. A. DAMAGES.

Compensatory damages in an action under 42 U.S.C. §1983 include lost future earnings. Thomas v. Frederick, 766 F.Supp. 540, 559 (W.D. La. 1991). As a consequence of the suspension, Mr. Murakowski's missed the opportunity to take some courses required for graduation. Having to wait for those courses (which are also a prerequisite to other courses), will set back his graduation by approximately one year.

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Mr. Murakowski is seeking a degree in chemical engineering. According to the U.S. Department of Labor, the average starting salary for a chemical engineer with a bachelor's degree is $59,361.00. (Murakowski Decl. Ex. I).13 As such the UD's unconstitutional conduct will set Mr. Murakowski back a year in his income generating capability, the Court should award him $59,361.00 as compensatory damages. B. COSTS.

As the prevailing party, Mr. Murakowski should be awarded his costs. Fed. R. Civ. P. 54(d)(1). C. ATTORNEY'S FEES.

Under Section 1983, a prevailing party is entitled to an award of attorney's fees absent special circumstances which would render an award unjust. Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 158 (3rd Cir. 2001) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). As there are no special circumstances which would render an award unjust here, Mr. Murakowski respectfully request that the Court grant an award of attorneys' fees. If such award is granted, counsel will submit a declaration to support an award in a specific amount.

13

This Court may take judicial notice of the contents of the website of the U.S. Department of Labor. Woodfin Suite Hotels, LLC v. City of Emeryville, C.A. No. C 06-1254 SBA, 2007 WL 81911, WL Op. at * 2, Armstrong, J. (N.D. Cal. Jan. 9, 2007) (Exhibit 4 hereto). 27

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CONCLUSION This is not a case about a threat to public safety. Any concern UD had about public safety was alleviated when (i) Mr. Murakowski delivered the letter from the psychologist, and (ii) UD accepted Mr. Murakowski agreeing to no longer live in a dorm, but to commute. After all, if UD had still considered Mr. Murakowski a danger, it would not have allowed him to return to the campus at all. It would make no sense. So the Court should not allow itself to be lured into thinking that this case somehow relates to public safety. Nor should this Court allow itself to be manipulated by invocations of the shooting at the Virginia Tech or similar tragedies. "[T]his court must not succumb to public pressure when deciding the law. Headlines may be appropriate support for policy arguments on the floor of the legislature, but they cannot support an abandonment in our courthouses of the constitutional principles that the judiciary is charged to uphold." In re Douglas D, 626 N.W.2d 725, 742 n.16 (Wis. 2001) (finding that student's essay involving chopping off the teacher's head to be protected speech). Stripped to its core, this case involves over-protective administrators, faced with an upset female student, who wanted to help her. This is understandable, and compassion is commendable. However, in so doing, those same administrators showed little compassion for the constitutional rights of Mr. Murakowski, and have subjected him to deprivation of his education, employment opportunities, and his constitutional freedoms. Institutions of higher learning should do better.

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WHEREFORE, for the foregoing reasons, Maciej Murakowski respectfully requests that this Court enter an Order (i) declaring that UD violated Mr. Murakowski's constitutional rights, (ii) declaring that the judgment issued by UD against Mr. Murakowski, and the sanctions imposed by UD against him, past and present, are deemed null and void, (iii) ordering that UD expunge all record of this judgment and punishment of Mr. Murakowski from its records, and (iv) awarding Mr. Murakowski compensatory damages and court costs, including reasonable attorney's fees. Dated: March 17, 2008

Respectfully submitted,

/s/ David L. Finger David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766 Attorney for plaintiff Maciej Murakowski

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MACIEl MURAKOWSKI, Plaintiff, v. THE UNIVERSITY OF DELAWARE, Defendant.
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C.A. No. 07-475 MPT

DECLARATION OF MACIEJ MURAKOWSKI

1.

My name is Maciej Murakowski.

I am over eighteen years of age and have

personal knowledge of the facts contained in this Declaration. I make this declaration in support of my motion for summary judgment. 2. I incorporate herein the factual allegations contained in the Verified Complaint in

this action, which allegations are based upon my personal knowledge. I also add the following. 3. Cynthia Cummings, when instructing me to obtain a letter from a psychologist,

specifically told me to show the psychologist my website posting titled "Maciej's Definitive Guide to Sex." However, I went beyond that and printed out my entire website for the

psychologist to review, which he did in my presence. 4. I have been and am working toward a B.S. degree in Engineering, with an

emphasis in Chemical Engineering. 5. My suspension was effective as of July 2, 2007. I was re-admitted for the winter

term 2008. As a consequence, I missed an opportunity to take some classes I need to graduate, and which I need to have taken to qualify for other classes. This will defer my graduation as much as a full year.

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6.

Attached hereto as Exhibit A are true and correct copies of the essays from my

website at issue in my suspension. 7. Attached hereto as Exhibit B is a true and correct copy of the University of

Delaware Policy for Student Use of Computing Resources for Home Pages, as set forth on the University's website at www.udel.edulwebstartlstuorg/student.resource.html. 8. Attached hereto as Exhibit C is a true and correct copy of a letter to me from

Cynthia Cummings dated April 20, 2007. 9. Charge. 10. Attached hereto as Exhibit E is a true and correct copy of a letter to Cynthia Attached hereto as Exhibit D is a true and correct copy of the University Judicial

Cummings from Dr. Richard R. Braun dated April 23, 2007. 11. Attached hereto as Exhibit F is a true and correct copy of an e-mail to Holli

Harvey from Cheryl A. Davis Robinson dated May 1, 2007, which was produced by the University of Delaware during discovery in this action. 12. Attached hereto as Exhibit G is a true and correct copy of the letter ruling of the

University of Delaware Office of Judicial Affairs, dated May 23, 2007. 13. Attached hereto as Exhibit H is a true and correct copy of an e-mail from Cynthia

Cummings to various individuals dated April 20, 2007. 14. Attached hereto as Exhibit I is a truly and correct copy of the letter ruling from

the University of Delaware Office of Judicial Affairs dated July 2, 2007. 15. Attached hereto as Exhibit J is a true and correct copy of Defendant University of

Delaware's Responses to Plaintiffs First Set of Interrogatories and First Request for Production of Documents Directed to Defendant.

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16.

Attached hereto as Exhibit I is a true and correct copy of a page from the website

of the u.s. Department of Labor, www.bls.gov/oc0/ocos027.htm. 17. I declare under penalty of perjury under the laws of the United States and the

State of Delaware, pursuant to 28 U.S.C. §1748, that the foregoing is true and correct. Executed on this 15th day of March, 2008 in Newark, Delaware.

L JiUL'

Mad1j Murakowski

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Exhibit A


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How to Skin a Cat


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Maciej Murakowski Patrick J. White March 12, 2007

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Introduction
The phrase "There's more than one way to skin a cat," has its origins in Colonial America where it w