ST. LOUIS — The Missouri Court of Appeals Eastern District has upheld a lower court’s decision to dismiss a lawsuit brought by a man against the curators of the University of Missouri and four individual employees, rejecting claims under the Campus Free Expression Act.
In its opinion, the appellate court affirmed the dismissal of claims against the individual defendants and granted summary judgment in favor of the university, ruling that Richard Hershey failed to properly connect his arguments on appeal to the facts required under Missouri court rules, according to the July 15 decision.
Hershey’s suit alleged that the university and four employees violated his rights under the CFEA when he was distributing literature advocating vegetarian beliefs at the university’s campuses in Columbia, Rolla and St. Louis.
He claimed that on each occasion, the university or individual employees interfered with or prevented his ability to freely distribute literature, a protected expressive activity under the CFEA.
In his petition, Hershey alleged that the university maintained policies violating the CFEA and that the individual defendants enforced those policies against him, infringing on his expressive rights. He brought claims against the employees in their individual capacities only.
The circuit court dismissed Hershey’s claims against the individual defendants, ruling that the CFEA does not authorize lawsuits against individuals.
The court later granted the university’s motion for summary judgment, finding that the university had not actually enforced any policy against Hershey or prevented him from distributing literature, and that Hershey had failed to demonstrate otherwise during discovery. Hershey appealed.
In affirming the dismissal of the claims against the individual defendants, the appellate court concluded that the plain language of the CFEA applies only to “public institutions of higher education,” not individuals.
The court found that the statute is entirely focused on institutional policies and actions, not on the conduct of individual actors. While the statute permits lawsuits by persons whose expressive rights have been violated, it does not identify individual employees as proper defendants when sued in their individual capacities.
The court wrote that the phrase “shall be permitted” in the statute’s passive language refers to what institutions must allow — not a general directive to all individuals.
Because individuals do not possess authority over others’ speech rights on campus, the court determined they cannot be sued under the CFEA for acting in a personal capacity. As a result, the court affirmed the dismissal of Hershey’s claims against the individual defendants.
Turning to Hershey’s appeal of the summary judgment granted to the university, the appellate court found his arguments failed to comply with the procedural requirements governing summary judgment appeals.
Missouri rules require appellants to tie their arguments and factual assertions directly to the numbered paragraphs and responses submitted under Rule 74.04(c), which governs the summary judgment process.
The court held that it could not act as Hershey’s advocate by sifting through the record to locate disputed facts on his behalf. Without proper citation to the Rule 74.04(c) materials, the court determined there was no legal basis to conclude that the circuit court erred in granting summary judgment.
Because Hershey failed to establish a genuine dispute of material fact, the court affirmed the lower court’s ruling in favor of the university. Hershey’s remaining points on appeal, which challenged alternative grounds for summary judgment, were deemed moot.
The judgment of the circuit court dismissing the claims against the individual defendants and granting summary judgment to the University was unanimously affirmed by Judges Michael E. Gardner, Thomas C. Clark II and Christopher E. McGraugh.
Missouri Court of Appeals Eastern District case number: ED113004
