On The Case

Fired prof and Sandy Hook doubter can proceed with conspiracy claims v. college

(Reuters) - At least one conspiracy theory espoused by former Florida Atlantic University professor James Tracy has been deemed to have enough credibility to move forward in federal court, according to a ruling last week by U.S. District Judge Robin Rosenberg of West Palm Beach. Judge Rosenberg said Tracy – who is best known for asserting the U.S. government staged the 2012 massacre of 26 first-graders and educators at Sandy Hook Elementary School in order to promote gun control laws – can move forward with his claims that Florida Atlantic conspired with union officials to violate his constitutional rights.

Tracy was fired from the university in 2016, ostensibly for failing to submit required paperwork disclosing outside activities, which, in his case, included writing a blog called Memory Hole. The ex-prof subsequently claimed in a complaint against the university, its board of trustees, several college officials, the Florida Education Association, his union local and top union officials that the college’s true motive was to end any association between Florida Atlantic and Tracy’s much-reviled writings on Sandy Hook. He claimed, among other things, that the school and the union that was supposed to represent his interests cooperated in a plan to keep Tracy from trying to get his job back, in violation of the professor’s First and Fourteenth Amendment rights.

Tracy, a tenured professor in the school’s communications department, has created controversy for Florida Atlantic since early 2013, when he began publishing blog posts about, in the words of his complaint, “questionable video and photographic evidence” and “incomplete national media coverage of the (Sandy Hook) incident and how it has and continues to be used by politicians, legislators, lobbyists and others to misappropriate massive amounts of public tax dollars and charitable donations from sympathizers and unsuspecting Americans, and to promote and install irrational and unconstitutional reforms upon the American public.” After Tracy’s posts began to receive national attention, including on CNN, the university fielded hundreds of requests for his ouster, including editorials in the Broward Sun-Sentinel.

Tracy insisted that he wrote the blog on his own time and that it reflected his personal views. He also said the blog fell outside of Florida Atlantic’s disclosure requirements for outside activities. In September 2013 – with the aid of union officials – Tracy reached a settlement with the school in which he agreed to remove Florida Atlantic’s name from the blog, including from a disclaimer in which he said he was only expressing personal views.

Florida Atlantic tweaked its disclosure policy for outside involvement in the fall of 2015. Tracy refused to affirm his compliance with the policy, occasioning a series of meetings and email among college officials. Tracy sought advice from the union, which supposedly told him to comply with the regulation and file a grievance. But before Tracy signed the affirmance, he received a disciplinary notice for failing to do so. According to Tracy’s complaint, he asked his union to file a grievance but was informed the union would not do so.

Tracy claimed in his complaint union and university officials met without his knowledge after his original consultation with the union. As his feud with the school escalated, Tracy alleged, he continued to receive advice from union officials without realizing that they were supposedly working against his interests. Although Tracy ended up filing the required paperwork, he was fired in January 2016.

In their motion to dismiss Tracy’s conspiracy allegations, union and university officials said the single meeting at the heart of the ex-prof’s allegations was not sufficient evidence of a plot to get rid of him. “Without providing any additional context with regard to this meeting, the Plaintiff suggests that it is reasonable to infer that … the union defendants and the university defendants would join forces to ensure that the plaintiff’s employment would be terminated and that the Union defendants would aid and abet the termination, all in an effort to punish the plaintiff for the views he expressed in his blog,” the brief said. “While it is conceivable that such a conspiracy was hatched at this meeting, given the assistance previously provided to the plaintiff by the union defendants to protect the plaintiff’s right to express his personal views via his blog, the Plaintiff’s recitation of facts … does not present a plausible assertion.”

Moreover, the defendants said, the meeting between union and college officials took place after Tracy received a notice of discipline, so the union was only implicated in the supposed violation of Tracy’s due process right to file a grievance against the university – a recourse that Tracy himself chose not to pursue. And unless Tracy could show the union’s participation in the conspiracy, the defendants said, there could be no conspiracy because the university defendants all acted on behalf of a single entity.

Those arguments failed to persuade Judge Rosenberg. The judge had previously dismissed an earlier version of Tracy’s suit, but she said his amended complaint included detailed allegations that plausibly alleged a conspiracy against him. In particular, Judge Rosenberg rejected the defendants’ argument that the union was not involved in the supposed plot to violate Tracy’s First Amendment right to express his opinions on his blog, despite her previous holding that Tracy had not been denied procedural due process.

Judge Rosenberg signaled where she’d end up in the introduction of her opinion, which said, “This is a case about the First Amendment right to free speech.” That’s a good sign for Tracy as he moves forward, since, after all, that’s how he wants the judge to view the case. The university wants the judge to think of the litigation as a run-of-the-mill employment dispute pumped up with constitutional claims. Based on Judge Rosenberg’s dismissal opinion, the school still has some work to do.

I left messages for Tracy counsel Joel Medgebow and university counsel Joseph Curley of Gunster Yoakley & Stewart but didn’t hear back.