The legal questions at the heart of a lawsuit from a popular Boise coffee shop and Boise State University continue to narrow.
Late last week, Ada County District Judge Cynthia Yee-Wallace issued a series of rulings in the lawsuit from Big City Coffee and its owner Sarah Jo Fendley, which originally began as a suit against Boise State University, its president Marlene Tromp and three top administrators.
Since the suit was filed in 2021, Yee-Wallace has removed the school and Tromp from the suit, but the legal challenge against Vice President for University Affairs and Chief of Staff Alicia Estey, Vice President for Equity Initiatives Francisco Salinas, and Vice President for Student Affairs and Enrollment Management Leslie Webb in their personal capacities continued.
The ruling is the latest in a case that first began in 2021 when Big City Coffee filed a $10 million tort claim against the university and several administrators. Fendley alleged that having to vacate her on-campus business following student upheaval in the wake of Minnesota resident George Floyd’s death violated the Idaho Consumer Protection Act and her constitutional rights. Students had questioned the coffee shop’s enthusiastic support of the Thin Blue Line and police officers at its downtown location and called for the closure of its Albertsons Library location.
This latest motion in response to Boise State University’s request for summary judgment ahead of a trial dismisses any counts against Salinas and, for the third time, found Fendley’s suit couldn’t find Tromp liable either. Yee-Wallace also threw out all of Fendley’s claims that Estey and Webb violated her rights to due process.
What remains to be determined in the trial set for August 28 is whether or not Webb and Estey retaliated against Fendley for exercising her First Amendment rights in their personal capacity, not as school administrators.
“The facts and First Amendment are on our side,” Boise State spokesperson Mike Sharp told BoiseDev in a statement Friday. “When politics and personal attacks are stripped away, the evidence establishes (Fendley) chose to leave campus and (Boise State University and the administrators) never asked anyone to compromise their First Amendment rights. We will continue to vigorously defend this case.”
Fendley was also pleased with the ruling and looks forward to her big day in court.
“I am thrilled with the judge’s decision on summary judgment and look forward to my day in court, where the evidence will show the jury that I was wrongly removed from campus and incurred damages,” she told BoiseDev.
Yee-Wallace also issued an order for mediation with an August 23rd deadline, five days before the trial is set to begin.
Yee-Wallace found there are “genuine questions of material fact” over whether or not Estey and Webb retaliated against Fendley for posting on social media defending her political views.
For the court to rule in Fendley’s favor, she has to prove that the administrators took an action against her specifically in retaliation because of a social media post she made in October of 2020 defending her store from students calling for a boycott of the store and due to Fendley’s open support of police and the Thin Blue Line flag in the aftermath of the killing of George Floyd.
Yee-Wallace’s ruling said Fendley believed the post calling for the boycott violated Boise State’s code of conduct, which another administrator, Associate Vice President for Campus Services Nicole Nimmons disagreed with her about. After a student complained about Fendley’s social media post defending the store, Nimmons told Webb that Fendley didn’t understand Boise State’s freedom of speech policy and it required a discussion. Fendley closed the store that day over concerns her employees wouldn’t feel safe while students were protesting the store.
Estey recorded this 42-minute meeting, where according to Yee-Wallace’s filing, Webb opened by discussing how the university approaches free speech in an “incredibly polarized moment” and how the university navigates the “marketplace of ideas,” where instead of limiting speech, students are encouraged to share their ideas and debate each other openly. The ruling said Fendley replied that she had been concerned about the backlash against her support for police and her then-fiancé Kevin Holtry, who uses a wheelchair after being shot in the line of duty. She told the administrators she felt “defeated” after the opposition from students and she thought the university’s code of conduct would protect her from a situation arising like this.
Fendley responded by saying she felt bad for her student employees who have worked hard in the store and are now dealing with those protesting and a BSU adjunct being critical of the store because of her political views. She then said Big City Coffee would only stay in its current location if BSU would support the business, which BSU administrators interpreted as silencing students from criticizing the business online and stopping any protests of the store.
“I mean, you picked me for a reason, and if you didn’t pick me for a reason because of the quality and you wanted us here, then you picked me just because you wanted to slot somebody into the spot, Fendley said in the meeting. “And if that’s the case, then we’ll get out of here because I’m not going to do that. But if you’re going to support us, then we’ll stay, but if you’re not, then we’ll go. Because it’s not worth it. I’m not going to fight with anybody about this anymore.”
According to the recounting of the recording, Webb explained the university had to remain neutral and Estey suggested the two parties go their separate ways, to which Fendley replied “okay” and requested that an Aramark representative in the room would have to break their contract. Big City Coffee had moved out of its location by October 26, four days later. Yee-Wallace’s ruling said the administrators say none of the staffers named had the authority to terminate or contract and Fendley admits no one asked her to leave campus.
The ruling also pointed to evidence submitted by Fendley that could indicate she was retaliated against. This includes public records showing Boise State officials starting to put together a media statement to use in the event Big City Coffee opted out of their contract and contacted the press. Webb and Nimmons also had a discussion about the option of “not going forward together” before the meeting. Fendley also contends she wasn’t looking for the school to silence students, but only to stick up for her business like the university had done for Chick-fil-A when it insisted the restaurant would be on campus and students could choose not to eat there if they had political concerns with the company’s socially conservative stance on LGBTQ issues.
Yee-Wallace also pointed to evidence submitted by Fendley showing that the initial draft of a statement workshopped with an outside public relations firm included phrasing that Big City Coffee was welcome to stay on campus if they chose, but this was later removed before it went out to the public.
Salinas, the third administrator named in the suit, was removed by Yee-Wallace because he wasn’t present at this meeting in question, involved in the contract negotiations, not did he take any other actions against Fendley.
Fendley won’t be able to make her case that her rights to due process were violated by Boise State.
Yee-Wallace’s opinion said in order for someone to file a suit claiming their due process rights were violated, the person must show they have an interest in property deserving of protection by the constitution.
The ruling said Big City Coffee didn’t show in their filings they didn’t have adequate notice or were prevented from sharing their views during the events that transpired leading up to the store leaving campus. Yee-Wallace also said Fendley says they have an interest in the contract with the school and its associated benefits, but there wasn’t enough evidence to show exactly what those benefits are or how a contract constitutes as property protected by the constitution.
“In addition, the farther the purely contractual claim is from an interest as central to the individual as employment, the more difficult it is to extend it constitutional protection without subsuming the entire state law of public contracts,” Yee-Wallace wrote.
BoiseDev’s Erin Banks Rusby contributed reporting.
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