United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED August 21, 2023 No. 22-30588 Lyle W. Cayce ____________ Clerk

Andrew Babinski,

Plaintiff—Appellee,

versus

Kristin Sosnowsky, in her personal and official capacities as Chair of the School of Theatre of Louisiana State University; Shannon Walsh; John Fletcher; Alan Sikes,

Defendants—Appellants. ______________________________

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:20-CV-426 ______________________________

Before Richman, Chief Judge, and Stewart and Dennis, Circuit Judges. Carl E. Stewart, Circuit Judge: Kristin Sosnowsky, Shannon Walsh, John Fletcher, and Alan Sikes (collectively “the Professors”) appeal the district court’s denial of qualified immunity after Andrew Babinski alleged that they violated his Fourteenth Amendment right to due process by conspiring to prevent his continued enrollment in Louisiana State University’s (“LSU”) theatre program. Because the Professors’ conduct does not violate clearly established law, we Case: 22-30588 Document: 00516865070 Page: 2 Date Filed: 08/21/2023

No. 22-30588

REVERSE the district court’s determination that they were not entitled to qualified immunity and DISMISS Babinski’s claims. I. Background A. Babinski’s Time at LSU Babinski enrolled in LSU’s theatre doctoral program in 2017, where he excelled in his coursework. His academic accomplishments garnered him favor within the program, and he was invited to teach undergraduate students and serve as a teaching assistant to Professor Fletcher. But his experience took a turn for the worse in the Spring 2019 term when he enrolled in Professor Walsh’s THTR 7923 course, “Gender, Sexuality, and Performance.” According to Babinski, he thought he signed up for a semester of critical discussions on gender and sexuality in performance but was disappointed to find out that the class was largely skewed to Walsh’s politically-progressive opinions. Throughout the semester, Babinski alleges that he suffered hostility and mistreatment from his classmates and Walsh in THTR 7923. He states that his classmates regularly made fun of his opinions and were dismissive of his views because they often differed from his peers’ assessments of the same issues. He further claims that his mistreatment in the course only worsened when he approached Walsh for help. He remained in the class despite his perceived mistreatment because the course was necessary to progress in the program. Walsh required each student to write a term paper relevant to the subject matter of the course to receive a passing grade in her class. Babinski wrote his paper in a performative fashion, a writing technique he learned at

2 Case: 22-30588 Document: 00516865070 Page: 3 Date Filed: 08/21/2023

No. 22-30588

LSU. 1 His paper criticized the Professors, the LSU theatre program more generally, and his classmates in THTR 7923. Wa