BY WATCHING ADAMS STAFF – 7/25/16

After four months of litigation, the parties in the Ledonne v. Adams State University case have reached a settlement agreement.  In response, the American Civil Liberties Union of Colorado issued the following press release:

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ACLU Wins $100K Settlement for Former Adams State Professor Who Was Banned from Campus after Criticizing the University

DENVER – Adams State University has agreed to rescind a “No Trespass Order” banning Danny Ledonne, a former professor who publicly criticized administration practices, from its Alamosa, CO campus and to pay $100,000 to settle a lawsuit filed by the ACLU of Colorado based on claims that the university violated Ledonne’s free speech and due process rights.

“The ACLU of Colorado brought this suit to vindicate Danny Ledonne’s First Amendment rights and his right to due process of law,” said ACLU of Colorado Legal Director Mark Silverstein. “By summarily banning Danny from a public campus and falsely labeling him a security threat, without providing any opportunity to rebut the false allegations, the university deprived him of due process and unjustifiably retaliated against him for his constitutionally-protected criticism of university practices.”

From May 2011 to June 2015, Ledonne taught in the Mass Communications program and performed video production work for Adams State University. In September 2015, after his employment at the university had ended, he launched WatchingAdams.org. On October 12th, Ledonne posted a series of articles on the site criticizing the pay disparity between faculty and the administration and alleging that the university had violated the Colorado Wage Act by not making timely payments to adjunct professors.

Two days later, University President Beverlee McClure issued a “No Trespass Order” to Ledonne. The order declared that for “an indefinite period of time,” Ledonne was prohibited from being on Adams State University property and that his presence on campus “would result in his immediate arrest for trespass.”

In an attempt to justify the ban, university officials, including McClure, made multiple unsubstantiated public claims that Ledonne had engaged in “harassment,” “direct and indirect threats,” and “terrorism.”

“Throughout the course of the litigation, Adams State University was not able to produce a single piece of evidence that Danny Ledonne ever engaged in any threats of violence, direct or indirect, toward anyone or anything at the university,” said Silverstein. “The University had no legitimate basis for banning Mr. Ledonne from campus, nor did university officials have any factual basis for the stigmatizing and derogatory characterizations of Mr. Ledonne that they communicated to the university community and the public.” [emphasis added]

The ACLU of Colorado filed suit in February challenging the campus ban. As depositions were about to begin, the parties participated in a mediation before a former federal judge that resulted in a settlement agreement, which was finalized and signed last week.

“We hope that, as a result of this lawsuit, Adams State University recognizes that the public areas of its campus are a valuable cultural and educational resource not just for ASU faculty, staff, and students, but also to the residents of the greater San Luis Valley,” said ACLU cooperating attorney Reid Neureiter of Wheeler Trigg O’Donnell LLP, who represented Ledonne on a pro bono basis. “We also expect that Adams State will take appropriate steps in the future to ensure that any person subject to being barred from campus will receive fair notice and a reasonable opportunity to challenge the decision before an impartial decision-maker.” [emphasis added]

“I sought this legal action to challenge the university’s heavy-handed attempt to discourage me and others who disagree with the administration from speaking out. I could not have done so without the incredible support and assistance of the ACLU of Colorado, and the pro bono lawyers from Wheeler Trigg O’Donnell,” said Ledonne. “I am very satisfied with the settlement and look forward to continuing my work in this community.”

Ledonne was represented by cooperating attorneys Neureiter, Kayla Scroggins, and Kendra Beckwith from Wheeler Trigg O’Donnell and Silverstein and Sara Neel from the ACLU of Colorado.

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UPDATE 7/15/16: ASU issued a response, claiming that “William F. Downes, a retired judge, oversaw the mediation and ultimately decided in favor of Adams State, after nearly a year of controversy.”  The press release makes no mention of lifting the No Trespass Order or paying the $100,000 settlement amount.

UPDATE 7/28/16:  After being offline for approximately 24 hours, ASU has updated their press release in response to the ACLU lawsuit. In comparing the two versions: redacted and updated, here are the changes we have found:
1. Headline changed: “Mediation decides in favor of Adams State University” -> “Adams State University satisfied with results of mediation”
2. Statement removed: “After completing successful arbitration, Adams State University was found to have no wrongdoing…”
3. Statement removed: “William F. Downes, a retired judge, oversaw the mediation and ultimately decided in favor of Adams State, after nearly a year of controversy.”

These changes do not mention the $100,000 settlement amount. More importantly, the statement makes no mention of the No Trespass Order being lifted – which was the central claim of the lawsuit and the very first clause of the settlement agreement with which ASU claims it is “satisfied.”

The statement omits any mention of “direct and indirect threats against individuals and the campus as a whole” or similar claims that President McClure repeatedly used to justify the ban. Instead, the press release introduces the legally-innocuous phrase “concerns expressed by faculty, staff, and students.” The university continues to emphasize “No fault was found against Adams State University or the administration” when “no admission of wrongdoing” by either party was a clause in the settlement agreement.

UPDATE 7/29/16:

Clarifying the 7/29/16 addendum to the ASU press release – “Clarifying Facts: Ledonne vs. McClure et al.”

“Ledonne filed a motion for a preliminary injunction, arguing that his due process rights were violated. After a full day of hearing testimony, Judge Moore denied that motion.”

The ACLU filed a motion for preliminary injunction based on the the assertion that Ledonne had utter lack of due process prior to being banned from campus, including a failure to be notified of the allegations against him or a reasonable opportunity to respond before an impartial decision-maker, and a denial of his right to receive information and attend events on a public university campus. After the motion was denied, the ACLU appealed this motion, restating their claims and introducing additional case law to support these claims. The parties began preparing for a jury trial.

During this time, the plaintiffs and defendants began the process of discovery – during which the ACLU acquired the entirety of the documents believed to be President McClure’s “file” on Ledonne. The defendants and plaintiffs were scheduling depositions for mid-July, should mediation be unsuccessful.

Upon reviewing the documents obtained during discovery, ACLU of Colorado Legal Director Mark Silverstein stated: “Throughout the course of the litigation, Adams State University was not able to produce a single piece of evidence that Danny Ledonne ever engaged in any threats of violence, direct or indirect, toward anyone or anything at the university…  The University had no legitimate basis for banning Mr. Ledonne from campus, nor did university officials have any factual basis for the stigmatizing and derogatory characterizations of Mr. Ledonne that they communicated to the university community and the public.”

“While statements have been made that he was a professor, Ledonne was never employed as a tenure-track faculty member. Instead, he was on a one-year, temporary contract that ended May 2015. He was not an employee of Adams State University when he was issued the persona non grata.”

No one has claimed that Ledonne was ever “a tenure track professor” but have consistently maintained that Ledonne taught in the Mass Communication department between 2011-2015, first as an adjunct instructor from 2011-2014 and then as a visiting assistant professor from 2014-2015. Moreover, Ledonne’s employment status with ASU is immaterial to the claims of the case; Ledonne has a right to access the public areas of the university campus unless deprived of such by due process of law.

“On two occasions, Ledonne applied for a tenure-track faculty position which he did not receive. Ultimately, a faculty search committee filled the position with a highly qualified individual.”

The 2014 search (in which Ledonne was a semi-finalist) resulted in failure when none of the finalists accepted the position, though the university refused to consider Ledonne’s application for the position while nonetheless offering him a one year visiting assistant professor position.  Ledonne again applied for the full time position when it became available.

Upon investigating the 2015 search (in which Ledonne was not in consideration for the position), Ledonne’s Office of Equal Opportunity complaint alleged that the search committee exercised undo bias against his application. After obtaining his application scoresheets through an open records request in May 2015, Ledonne maintained that he discovered “technical, factual, and procedural errors” with the 2015 search process and sought to redress these grievances with the new OEO director in September 2015, who refused to meet with him to discuss the matter though Ledonne had been assured by the previous OEO director that the case remained open.  Ledonne was told he could not meet because he was not an employee, though the case had been filed when Ledonne was an employee.

The faculty member hired during the 2015 faculty search then left Adams State University after teaching the spring 2016 semester.

“The settlement with ACLU has a provision that Ledonne is to have no contact with a female professor who was on the selection committee that chose another candidate. This restriction from contact is for a one-year period.”

Ledonne has not had any form of contact with this professor since June 2015 upon completion of his teaching contract and the university never provided any evidence to the contrary despite banning him from campus in October 2015. Ledonne fully intends to honor this provision as he has already been doing so without any outside direction for the past year.

“As part of the settlement, the University’s insurance carrier agreed to pay a portion of the ACLU attorneys’ fees. By doing so, this allowed the University to focus on its mission, rather than continued litigation. The agreement ultimately saved the University time and money.”

Both parties agreed to the terms of mediation as being more favorable than ongoing litigation.  As reported in the Valley Courier, ACLU of Colorado Legal Director Mark Silverstein said although the university was not writing a check to Ledonne personally, he would receive about $65,000 out of the $100,000 ASU would be remitting to the ACLU. “The $100,000 settlement resolves Mr. Ledonne’s claim for damages and attorneys fees,”Silverstein said. “We keep only one-third for the attorneys fees. The rest of it goes to Mr. Ledonne. He will get about $65,000.” The attorney said ASU’s insurance company would write a check to ACLU for $100,000, which ACLU would put into a client trust account. Out of that account, ACLU will reimburse a cooperating attorney for some expenses and write a check from the client trust account to Ledonne.

“After the Board of Trustees failed to create an unfunded position specifically for him at his request at the October 2, 2015, meeting, Ledonne posted a number of articles critical of Adams State University.  The University has continuously complied with all of Ledonne’s requests for information, regardless of the intended use of the information, and even after the issuance of the persona non grata. The persona non grata did not impact his access to information, nor did it restrain his ability to advocate his position – he continued to have access to University records.”

In April 2015, Ledonne first proposed the creation of a new position to then-President David Svaldi.  This would have been a half-time teaching and half-time performing video production services (as had been the case since May 2011).  Ledonne characterized this as a “win-win” to avoid further dispute regarding the hiring process.  Ledonne was encouraged by the president to speak to the Board of Trustees about this proposal and Ledonne did so in May 2015, at which time he also presented letters of recommendation and a letter of support from approximately 80 students, staff, faculty and community members.  This request was not granted.

Ledonne appeared before the Board in October 2015 to request mediation for his hiring concerns.  Twelve days later, Ledonne was served a No Trespass Order, threatening him with arrest were he to set foot onto University property.

As argued by the ACLU, this No Trespass Order impacted Ledonne’s ability to attend events and activities on the ASU campus as well as access the university’s library. Further, the ACLU argued the many unproven claims by the ASU administration that Ledonne “threatened” individuals and was banned for “campus safety” created an unwarranted stigma against Ledonne in the Alamosa community.  The ACLU took Ledonne’s case pro-bono because they strongly believed his First Amendment rights to receive information and attend events open to the public were being violated without due process under law.

“Ledonne will only have the same access to the campus that other members of the general public have.”

Yes, this is precisely what the ACLU lawsuit sought to resolve and Ledonne is pleased with this resolution. Adams State University has not explained, if Ledonne was indeed a threat to campus safety, how mediation has addressed this issue in once again granting Ledonne access to the public areas of the ASU campus.