Archive for the ‘Freedom of Speech’ Category

Breaking: New Speak Up University Blog

April 26, 2010

We are proud to announce a new fully integrated, socially connected Speak Up University Blog.

The new Speak Up University blog can be found at http://blog.speakupmovement.org/university/

*We will no longer be posting or updating speakupmovement.wordpress.com*

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Screen shot of the new Speak Up University Blog

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California Legislature seeks creation of “Discrimination-Free Zones” at all state universities

April 12, 2010

I have been rough on my home state in recent posts.  Whether chiding the University of California Regents over a proposed speech code or pointing out the contradictory approaches to student speech, the lack of respect for student speech in California has caused me to cringe.  But just when I thought I was being too hard on the State I love, the California Legislature moves one step closer to creating “Discrimination-Free Zones” on all public school campuses, including universities.  And now I don’t feel so guilty. 

According to the text of ACR 82, which passed another hurdle in the legislature last week, California wants all public institutions of learning to implement “discrimination-free” zones by enacting new policies, offering new counseling services and providing new conflict management groups to “provide a safe haven from intolerance or discrimination.”  Here are the relevant portions of the resolution: 

Resolved, by the Assembly of the State of California, the Senate thereof, concurring, That the Legislature of the State of California hereby encourages all public education institutions, working with students, teachers, faculty, and other members of the public education community, to designate each campus as a “Discrimination-Free Zone” to provide a safe haven from intolerance or discrimination; and be it further

Resolved, That all public education institutions, prekindergarten through university campuses, are encouraged to develop and enact policies that support tolerance and acceptance of others regardless of their race or ethnicity, religion, disability, gender, gender identity, sexual orientation, nationality, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code; and be it further

Resolved, That all public education institutions are encouraged to enact procedures, such as counseling services and conflict management, that meaningfully address acts of discrimination that occur on campus; and be it further

Resolved, That all public education institutions are encouraged to notify parents and the campus community should be notified of existing policies and procedures that encourage tolerance of others; and be it further

Resolved, That all public education institutions are encouraged to use existing resources to identify themselves as “Discrimination-Free Zones” through placards, signs, notices of available services, and other appropriate identifications to create a campus climate that welcomes diversity and supports the tolerance of others

Who is behind this, you ask?  The California Faculty Association, the University of California, Equality California, the PTA and the California State Student Association, among others

While this is only a resolution and not a binding bill, the intent of the California Legislature could not be more clear:  free speech must yield to “tolerance and acceptance of others.”  Unfortunately for California college students, the encouragement of “policies that support tolerance and acceptance of others” will inevitably result in more campus speech codes and censorship, similar to what happened at Spokane Falls Community College last year. 

It turns out I was wrong the other day when I said that California has free speech schizophrenia.  It does not.  A few colleges and universities strive to protect students’ rights.  But these are the outliers.  The Legislature has made it clear that California public policy is to dismantle the marketplace of ideas.   We will try to make sure that does not happen.

USA Today and CLS v. Martinez

April 10, 2010

USA Today took on Christian Legal Society v. Martinez (to be heard by the Supreme Court on April 19) in a recent opinion column by Tom Krattenmaker.  In this case, the Supreme Court will decide whether Hastings College of the Law violated the Constitution by refusing to recognize a Christian Legal Society chapter because it draws its officers and voting members from among those who share its religious commitments (both doctrinal and ethical).

Mr. Krattenmaker’s primary points are (1) this case is hard; and (2) there should be some compromise.

As to the assertion that this case is hard, the unstated underlying assumption seems to be that the law has never considered what to do with religious groups that want to choose their leaders and members based on religious beliefs.  This assumption is demonstrably false.  The law almost always respects the freedom of religious groups to use religious criteria to define themselves.

Examples abound.  Title VII of the Civil Rights Act of 1964 exempts religious employers from its ban on religious discrimination in employment.  More generally, the law respects the freedom of churches and other religious congregations to select their members and their clergy.   The proposed Employment Non-Discrimination Act exempts religious employers from its ban on “sexual orientation” discrimination.  Non-discrimination “strings” attached to federal money do not include “sexual orientation,” most do not include religion, and the Department of Justice has opined that forcing religious groups to give up their religious staffing freedoms as a condition of receiving federal funding violates the Religious Freedom Restoration Act.  The Supreme Court has already held that “expressive associations” have a right to deny leadership to individuals who reject a group’s message through their beliefs, speech, and actions.

Accordingly, it is Hastings — not CLS — that seeks a radical departure from the prevailing way that the law has dealt with religious groups  that consider religious beliefs when choosing their leaders and members.

Mr. Krattenmaker’s second main point is that there ought to be some “middle ground.”  He cites approvingly two specific examples offered by Robert O’Neil, director of The Thomas Jefferson Center for the Protection of Free Expression.  Here is the first:  “The justices could rule, for instance, that the Christian student group might rightly be expected to include gay students as rank-and-file participants, but not as officers.”   There are many problems with this proposed “compromise.”

First, it is misleading (at best) to suggest that this case is all about the ability of “gay students” to serve as leaders and voting members of CLS.  Hastings originally said that CLS could not consider religious belief or same-sex sexual conduct in choosing officers and members.  In other words, it could not deny voting membership to an atheist who rejected CLS’s core religious beliefs.  Hastings later said that CLS was required to admit anyone to leadership or membership.  In other words, it is simply wrong to say that this case is all about “gay students.”

Second, this proposed compromise is, in a very real sense, what CLS is already doingAnyone can be a “rank-and-file participant of CLS,” without regard to their beliefs, sexual “orientation,” or sexual practices.  Hastings deemed this insufficient, declaring that CLS was required also to open up voting membership and leadership to students who reject its core religious commitments.  In my view, Hastings has not persuasively argued why participation is insufficient and why eligibility for voting membership and leadership is also required.

Third, to the extent one modified this “compromise” to require students who reject CLS’s beliefs to be voting members (as opposed to mere rank-and-file participants), it ignores the fact that voting members choose the group’s leaders and thus have a significant role in maintaining the group’s religious character and message.  Moreover, voting members (students who have voluntarily signed the CLS Statement of Faith) lead CLS Bible studies.  Does it make sense to force CLS to allow individuals who reject the Bible to lead a study of it?  Is this a sensible compromise?

The second proposed compromise Mr. Krattenmaker proposes is as follows:

Clearly communicate the anti-discrimination code, and [the] expectation to abide by it, to all student groups. But refrain from action against any of them unless a real-life, excluded individual steps forward with a legitimate grievance.

There is actual a kernel of common sense here.  No actual person who rejected CLS’s religious views sought to be a leader or voting member of CLS at Hastings.  If Hastings simply responded to complaints, this dispute might have never arisen.  The problem, though, is that Hastings required CLS to promise in advance that it would never consider religious belief or immoral conduct in selecting its officers and voting members.  CLS could not secure access to meeting space, funding, and communications mechanisms without making that advance promise.  Hastings essentially said to CLS, “you can’t use your Statement of Faith in choosing your leaders and voting members.”  Understandably, CLS could not make such a promise, and Hastings ejected it from the speech forum it set up for student groups.

The O’Neil/Krattenmaker suggestion points out what is really going on in this case.  Hastings is not really trying to open CLS to students who reject its religious beliefs but nonetheless desire not only to attend and participate (which CLS already allows) but to serve as leaders and voting members.  There is no evidence that such a student ever existed, and it is difficult to imagine what legitimate motive such a student might have.  Instead of protecting actual people from the unjust denial of some valuable benefit on an irrelevant and invidious basis, Hastings is simply trying to “send a message.”  Its message is that CLS’s religious and moral beliefs are wrong.  Hastings is trying to communicate its own view that same-sex sexual conduct is not immoral.  Hastings wants to loudly proclaim that it disagrees with CLS.

Yet, the essence of the First Amendment is that the government cannot use its power to disfavor messages it disagrees with.  Hastings’ treatment of CLS goes to the core of the First Amendment, and CLS should not be expected to compromise away its fundamental liberties so that Hastings can better proclaim its own message.

California’s Free Speech Schizophrenia

April 7, 2010

Spring is in the air in California.  While the Sierra Nevada gets a late spring snowstorm, the California golden poppies have opened along I-5.  Spring is a time of transition from one season to the next, and also a time when high school seniors eagerly await that wonderful transition from high school drama to college coolness.  At this time of year particularly, seniors await acceptance letters from their favorite college or university.  But once the letters arrive, how is a high school senior going to choose his or her school?  If the decision has anything to do with free speech policies on campus, it may be wrought with confusion, especially for students considering California schools. 

California’s public colleges and universities, it seems, have no institutional respect for freedom of speech on campus.   A series of contradictory policy decisions have made the Golden State’s higher education system a mess when it comes to freedom of speech. 

Take last week, for example.  On Friday, FIRE’s Samantha Harris wrote about the great news at San Francisco State University.  SFSU repealed its illegal speech zone policy and now allows literature distribution in the outdoor areas of campus so long as pedestrian traffic is not impeded.  Even better, SFSU removed the official free speech zones so that students can now engage in speech in most outdoor areas.  But down the street, the University of California Hastings College of the Law continues to enforce its “nondiscrimination” policy against the Christian Legal Society, banning it from campus. 

On Tuesday, I wrote that the University of California system is considering a new speech code that will give administrators great ability to censor disfavored student speech.  This comes on the heels of the UC system amending its harassment policy to protect student speech.  But at the same time, the Los Angeles Community College District, the largest community college district in the United States, fights to keep an even more speech-restrictive harassment policy. 

To top it off, we have good information that several California State University system campuses still maintain an unconstitutional speech code that was struck down and amended two years ago. 

For a state that supposedly accords broad protection to student speech and that has one of the best public higher education systems in the country, California’s public colleges and universities remain behind the curve on free speech issues.  The Golden State can do better.

CLS v. Martinez: A Response to Professor Hamilton

April 7, 2010

There are so many things wrong with Marci Hamilton’s Findlaw column about Christian Legal Society v. Martinez that it’s hard to know where to start.  So I’ll start at the beginning and work my way through, hitting the most serious deficiencies in the column.

The column states that this case will cause the Supreme Court to “wade into the culture wars morass.”  To be sure, this case arises out of a leftwing university’s attack on a theologically orthodox religious group.  However, the legal principles involved transcend the particular positions taken by the contending sides on religious and moral questions.  At stake is the freedom of all student groups to choose leaders who share their respective missions, free from undue government pressure.  For decades, counter-cultural groups have invoked the First Amendment to protect themselves from hostile university administrators.  In the past, groups on the Left resisted officials they perceived to be conservative.  Now the roles are reversed.  Just as the courts vindicated the Constitution in those cases, they should do so now as well.  There is no need for the Court to “choose sides” in the culture war.  It simply needs to uphold the Constitution.

Professor Hamilton declares that “no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader.”  This is simply incorrect.  CLS stated as follows on pages 35-36 in its opening brief filed in the Supreme Court

In accordance with traditional Christian teaching, the CLS chapter does not exclude all those who engage in what they regard as immoral conduct, sexual or otherwise: The CLS membership policy excludes only those who do so “unrepentantly,” which is religion-speak for those who do not regard the conduct as wrong or sinful and resolve to cease acting in that manner.  Thus, far from excluding people on the basis of orientation, the CLS Statement of Faith excludes them on the basis of a conjunction of conduct and the belief that the conduct is not wrong.

Given that the remainder of Professor Hamilton’s column reveals that she read CLS’s opening brief, this misstatement of CLS’s position regarding human sexuality is surprising.  Moreover, this approach to sexuality (i.e., differentiating among the experience of same-sex sexual attraction, the participation in same-sex sexual intimacy, and the persistent and unrepentant participation in such conduct) is not unique to CLS; many religious groups (and social scientists) do likewise.  To suggest that groups like CLS embrace and impose more categorical “rules” is misleading, and in a way that does not put CLS in a good light.  Nuances matter when it comes to people, and they matter when it comes to language and the law.

The very next sentence of Professor Hamilton’s column characterizes CLS’s policies this way:  “In other words, homosexuals need not apply.”  This is, at best, grossly misleading.  Individuals who experience same-sex sexual attraction are eligible for membership and leadership in CLS.  To the extent the word “homosexuals” is understood to include such persons, Professor Hamilton’s assertion that “homosexuals need not apply” is false.  To the extent that the word “homosexuals” includes people who do not engage unrepentantly in extramarital sexual behavior, Professor Hamilton’s characterization of CLS’s policies is also false.

Next Professor Hamilton states that “[b]ecause CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group.”  This statement, ambiguous itself, ignores the other reason Hastings gave for denying CLS the valuable benefits of registered student organization status:  the fact that it draws its leaders and voting members from among those who voluntarily sign its statement of faith, something Hastings deemed “religious discrimination.”  This case is not only about the emotionally and culturally explosive conflict over human sexual behavior, but also about the freedom of religious groups to consider religious belief (e.g., whether the Bible is inspired, whether Jesus is divine) in choosing their leaders.

Professor Hamilton next argues that “this case hardly seems worth the candle.”  I respectfully disagree.  First, the column misstates the identity and value of the benefits Hastings confers on every group but CLS.  It is undisputed that Hastings has denied CLS access to the customary means by which student organizations communicate with the student body, such as the annual Student Organizations Fair, the law school newsletter, bulletin boards, mailboxes, or weekly email announcements of activities.  Although Hastings has offered to allow the CLS chapter to use meeting rooms as a matter of sufferance during the pendency of the litigation, Hastings has reserved the right to charge CLS a fee and to revoke the privilege of meeting at any time.

Professor Hamilton’s suggestion that these benefits are not valuable is hard to square with their existence and their widespread use by registered student organizations.  If these benefits were not valuable, why would Hastings go to the trouble and expense of creating them and conferring them upon student groups?  Why would student groups regularly use them to pursue their diverse missions?  I’ve spoken at a number of law schools this semester, and the leaders of various student groups have unanimously confirmed the importance of the various benefits universities provide to their groups.

The denial of such benefits is constitutionally significant.  Healy v. James, Widmar v. Vincent, Rosenberger v. Rector of the University of Virginia, and numerous lower court decisions unambiguously hold that the denial of such benefits is a constitutionally cognizable injury.  The fact that CLS is not utterly without alternative (but undeniably less effective) means of pursuing its mission and communicating its message is both legally irrelevant and factually unpersuasive.  It is hard to imagine that one would so easily dismiss the harm suffered by a group if a law school withheld benefits from the group on the basis of some reason deemed less defensible, e.g., because the group included primarily African-American students.  The bottom line is that it is simply false to suggest, as Professor Hamilton does, that this case is about CLS’s desire for the Hastings “logo and imprimatur.”

Moreover, Professor Hamilton does not consider the additional way that the courts have assessed the burdens that governments impose upon religious organizations through the application of religion and “sexual orientation” nondiscrimination rules.  In addition to examining the benefits denied, courts assess the effect of complying with the rule in question.  In this case, there can be little doubt that forcing CLS to have an atheist lead its Bible studies would undermine its ability to formulate and communicate its preferred message.  Similarly, CLS would not be able to effectively convey its message regarding sexual morality if it were unable to remove a hypothetical Mark Sanford, Tiger Woods, or Eliot Spitzer from a leadership post.

Next, Professor Hamilton asserts that “this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements.”  Religious groups, like all others, are “entitled” to the treatment that the Constitution mandates.  And it is not wrong for religious groups to take action to vindicate their constitutionally protected rights.  Professor Hamilton contends that such groups seek equal treatment “despite the Establishment Clause, the Constitution’s separation of church and state,” apparently suggesting that Hastings would violate that provision of the First Amendment by giving CLS access to its speech forum.  But the Establishment Clause plainly does not require Hastings to withhold registered student organization status from CLS.  The Court’s decisions in Widmar and Rosenberger settled that question.

Professor Hamilton believes that it is somehow inappropriate – even “irrational” – for religious groups like CLS to seek access to speech forums “from government entities that have staked out positions that are diametrically opposed to their core religious beliefs.”  I don’t see why this is inappropriate.  CLS wants to pursue its mission, and access to meeting space, funding, and communications mechanisms provided by the law school will help it do so.  Its receipt of the benefits of recognition is entirely consistent with Hastings’ stated purpose of encouraging a robust debate on a virtually unlimited set of topics.  CLS’s use of meeting space, funding, and communications mechanisms does not cause it to compromise its integrity in any way.  In any event, it is one thing for a government entity to “stake out a position” with which a religious group disagrees; it is quite another for the government to use its power to pressure a religious group to conform its perspective to that of the government.  That is precisely what Hastings is doing, and this goes to the core of the Free Speech Clause.

Professor Hamilton next contends that CLS’s argument that Hastings violated its Free Speech Clause rights “is a real stretch.”  Again, I disagree.  Professor Hamilton fails to address the significance of the Supreme Court’s decision in Boy Scouts of America v. Dale, in which the Court held that the First Amendment forbids the application of a “sexual orientation” non-discrimination law to an organization that considers homosexual conduct immoral.  In my opinion, her attempts to distinguish Rumsfeld v. FAIR and Rosenberger are unpersuasive.  In Rumsfeld, the law schools lost because military recruiters would not become “members” of the law schools, undermining their claim that hosting the recruiters would substantially undermine their ability to communicate their position in favor of homosexual activism.  The Court indicated that if the government were conditioning the receipt of a benefit upon a group’s acceptance of members who oppose the group’s mission, the Constitution would be violated.  Hastings will not recognize CLS unless it allows those who reject its religious commitments not only to become “members,” but also to become officers.  Accordingly, the Rumsfeld decision supports CLS’s position.

Professor Hamilton gets one thing right:  she observes that Hastings is “openly opposed” to CLS’s beliefs.  To be sure, this observation is the starting point for her somewhat strange assertion that it is “irrational” for CLS to seek access to speech forum at a public law school that is committed to punishing CLS because of its disagreement with the prevailing orthodoxy.  In any event, her observation about Hastings’ opposition to CLS’s beliefs gets to the heart of this case.  It is not about Hastings preventing an invidious discriminator from denying protected minorities some valuable benefit.  Instead, it is about Hastings attempting to use its considerable power to pressure a dissenting group to change its counter-cultural message.  Under Professor Hamilton’s logic, it would be “rational” for theologically orthodox Christian students to simply withdraw from Hastings entirely on the ground that the school opposes their viewpoint.  Is this really the result a public law school subject to the First Amendment should desire?

Professor Hamilton asks whether CLS, in order to be “fully satisfied,” needs the law school to entirely eliminate “sexual orientation” from its non-discrimination policy and wonders whether its civil rights action is just “stage one” in some larger “campaign” at the school.  First, it bears noting that Hastings has declared that it forbids any group from invoking any reason to deny any student a membership or leadership position.  CLS’s lawsuit challenges this severe interference with the right of every group to formulate and communicate its own message.  Second, neither CLS national nor any student chapter has mounted any sort of larger “campaign.”  On numerous campuses, CLS chapters were able to persuade administrators to respect their religious freedom.  Once that happened, they did not take any additional actions regarding non-discrimination policies.  They simply went about the business of pursuing their mission.  Simply put, CLS does not object to law schools’ recognition of Outlaw or any other group for that matter, but Outlaw objects to CLS.

Professor Hamilton claims that CLS “misstated the Law School’s policy:  That policy states that no organization is permitted to put its – or its members’ – discriminatory beliefs into action.”  I am afraid that it is Professor Hamilton who misunderstands the law school’s policy – and the nature of CLS’s argument.  At the outset, it is worth noting that Hastings recognized a religious student group with a statement of faith requirement prior to 2003 as well as a group (La Raza) whose by-laws mandated race and/or national origin discrimination in 2004.  When Hastings withheld recognition from CLS in 2004, it invoked the religion and “sexual orientation” provisions of its written non-discrimination policy.  CLS correctly observed that Hastings allowed other groups to organize around secular ideas – to exclude individuals who rejected their core principles.  For example, it observed that the Hastings Democratic Caucus reserved the right to deny leadership positions to individuals who opposed Democratic Party principles.  CLS correctly argued that this constituted discrimination on the basis of viewpoint – something presumptively unconstitutional.  In an apparent acknowledgement of the power of this claim, Hastings subsequently claimed that no group could exclude any person for any reason. Of course, this shift simply magnified the scope and depth of Hastings’ violation of the right of expressive association.

Professor Hamilton asserts that CLS’s argument “rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure.”  This assertion reflects a serious misunderstanding of CLS’s argument.  As noted above, CLS argued that it was viewpoint discriminatory for Hastings to allow political groups the freedom to deny leadership to individuals who rejected the group’s political views while denying religious groups the freedom to deny leadership to individuals who rejected the group’s religious views.  The power of that argument does not rest upon any assertion that a Republican would never want to join a Democratic club, or on the assertion that there would never be a circumstance in which a Democratic club might choose to allow a registered Republican to serve as a leader or member. The argument instead rests upon the undeniable observation that Hastings acknowledged the freedom of political groups while denying the freedom of religious groups.

Professor Hamilton concludes her column by arguing that CLS’s pursuit of equal treatment contradicts what she characterizes as the traditional “Republican Party” view that religious organizations should not accept government benefits.  CLS is not the Republican Party and is not a Republican group.  As such, it is unconcerned with whether its effort to vindicate its constitutional rights is consistent with what Professor Hamilton characterizes as Republican Party principles.  Second, I acknowledge that one could argue whether a public university should extract activities fees from its students in order to support student groups.  However, even if one opposes such a system, it is not inconsistent to argue that if such a system exists, it should be administered fairly.  At Hastings, it has not been administered fairly, and that is what CLS has challenged.

Note:  This column was submitted to FindLaw Writ, but it did not agree to publish it.

UC System Considering New Speech Code

April 5, 2010

The University of California System is considering a new speech code in the wake of a few unfortunate speech incidents on its campuses.  AP reports that UC System President Mark Yudof is considering a new system-wide bias incidents or “hate speech” policy to remedy recent incidents involving swastika graffiti and a noose found hanging on a library book shelf.  In the former incident, UC Davis found several swastikas painted on university property and one on a student’s dorm room door.  In the latter incident, UCSD students used Facebook and other online media to promote an off-campus party that played off of negative racial stereotypes.  This caused the university to freeze the funding of 33 student media outlets.  Some California legislators called for punishment of the students.  The incident was followed by a student hanging a noose in the library, which later turned out to be a hoax.  The UC Davis incidents are obviously illegal (defacing government property) and may be considered true threats of violence, which are not protected forms of speech.  FIRE has done a good job detailing the proper reactions to the UCSD incidents. 

The UC’s actions are surprising, as Yudof and the UC General Counsel have done well recently by amending the system’s sexual harassment policy to comply with the First Amendment.  But it seems that Yudof may be receiving bad advice this time around.  The proposed speech code, which has surfaced from the UC Students Association, will prohibit “hanging a noose, burning a cross, or placing a symbol, such as a swastika, without authorization, on university property or at official university functions.”  The restrictions seem benign at first glance.  No one should be allowed to encourage criminal activity on campus or incite violence, and for this reason much of the restriction might pass constitutional review.  But the restriction on “placing a symbol,” runs afoul of the First Amendment.  Vague?  Overbroad?  Prior restraint?  You bet!  This gives an administrator unbridled discretion to determine which “symbols” are allowed on university property and which are not, with no criteria to guide their decisions.  This can result in an administrator finding that certain “symbols” are too “offensive” to be allowed (for example, a display of crosses during a Cemetery of the Innocents event).  This has the potential to stifle protected speech. 

President Yudof and the UC Regents would be wise to take heed of what happened to their university colleagues in College Republicans at San Francisco State University v. Reed, where a federal district court in San Francisco struck down a California State University system’s civility code as unconstitutional.  The court issued the decision after San Francisco State University investigated a College Republicans anti-terrorism rally that involved stepping on hand-made flags of Hezbollah and Hamas.  As the court reminded the CSU:

controversial expression . . . is the First Amendment’s highest duty to protect.  By political definition, popular views need no protection.  It is unpopular notions that are in the greatest peril—and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion.  Fashion, it was understood, is an agent of repression—and repression is an agent democracy’s death.

If the UC wants to prohibit defacing university property, it can find better ways to do so.  If it wants to protect student safety, it may do so by prohibiting speech that incites violence.  But if it wants to promote racial tolerance and a marketplace of ideas, it will do better by allowing speech to occur, not banning it based on a few isolated incidents (one of which was a hoax).  I hope the UC takes the high road by taking another look at this proposed policy and bringing it into compliance with the First Amendment.

The Sweet Sixteen of Liberty

March 24, 2010

One of the downsides of defending First Amendment rights on campus for a living is that you begin to think of universities as the sum of their speech code parts.  Rather than fight this tendency, I decided to try picking an NCAA tourney bracket based on how the games should come out if it was based on the schools’ commitment to the First Amendment rights of students.  The Secretary of Education has suggested banning teams with low graduation rates from the tournament.  Perhaps banning those with a red light rating from FIRE might also be considered.  (O.K., both are bad ideas, but bear with me). 

The first two rounds have seen mixed results from a First Amendment perspective.  For instance, Murray State, President Obama’s upset special that did knock off Vandy in its first round game before succumbing to Butler, had the “speech code of the month” (not a good thing) for March.  And Cal. Berkeley–the flagship of a UC system that has decided that it will simply ban expressive association on campus–beat Louisville in the first round but is now at home after being dispatched by Duke.  Perhaps if the Cal. men’s basketball team hadn’t been required to give playing time to people who oppose basketball it might have fared better.  That’s what an open membership policy will do for you. 

A dilemma with making these picks is that most universities have a bad First Amendment track record.  So one must choose between schools that, from a First Amendment perspective, should be on the CBI bubble.  There is also the problem of private v. public universities.  How does one compare the environment for speech on campus at a Christian private university and a public state school?  I developed a few guideposts:

  1. FIRE’s red/yellow/green light rating is an important factor.
  2. Prior and current First Amendment violations by a campus are negatives that can cause a school to lose to a school that only has bad policies on paper.  Practice trumps policy.
  3. A university will not be excused for its past violations just because the policies have now been changed as a result of litigation.      
  4. Private universities get some leeway, but not a complete pass.  Otherwise the exercise becomes pointless as Baylor and St. Mary’s battle to a scoreless tie.
  5. Duke must lose.    
  6. I retain the authority to apply additional criteria as I choose and to apply the above criteria in any manner I wish.  One might say my discretion is unbridled.  Especially insofar as is necessary  to give effect to rule 5. 

 

The Picks:

MIDWEST

Northern Iowa v. Michigan State

Michigan State was recently on FIRE’s red alert list of schools with some of the worst speech codes in the country after it applied a spamming policy to prohibit a student from emailing professors to protest a university decision.  However, without litigation it has since amended its codes making Michigan State a yellow light school in FIRE’s ratings. 

Northern Iowa, despite its heroics in knocking off Kansas, is also a FIRE red light school.  In fact, it had the speech code of the month in 2008 where FIRE noted that the school prohibits “inappropriate words” in its “bias incident” policy.  

In the end, while it is a close call between these two non-paragons of freedom, Michigan State beats Northern Iowa on the strength of a late three-pointer by Dean Joan Howarth of the Michigan State Law School, an ACLU member and GLBT advocate who wrote a law review article defending CLS’s position in CLS v. Martinez.  Such intellectual honesty is refreshing and commendable. 

Pick–Michigan State

Tennessee v. Ohio State

This one is relatively easy.  Ohio State has a red light from FIRE.  Tennessee is green!  This places it in rarified air among universities, only about 2% of which achieve this rating.  And THE OSU’s history is even worse.  In 2003, OSU derecognized its CLS chapter when they group refused to sacrifice its Statement of Faith for voting members and officers.  While OSU eventually amended its policies to protect the First Amendment rights of religious student groups it did so only in response to a lawsuit by CLS and ADF.  So as much as it pains this Bama fan…

Pick–Tennessee 

WEST

Syracuse v. Butler

This is a matchup of two private schools.  While private, Syracuse says that it is open to the free exchange of ideas on campus.  Yet, despite its promises, the school has a red light rating because its policies don’t match its rhetoric.    

Butler is also private but has not been rated by FIRE.  Conservative activist David Horowitz was hit by a pie at Butler in 2005 by students who did not like his views.  Butler recently garnered attention by suing a student blogger who criticized the school’s dismissal of a faculty member.  

Pick–In a tight one, Syracuse.

Xavier v. Kansas State

Kansas State has a red light rating from FIRE, largely on the strength of its policy prohibiting “rude or challenging behavior” by those with a “formal association” to the school (undefined).  In truth, this is a statewide policy that would appear to apply at Kansas University as well–perhaps explaining the loss to Northern Iowa.  Had they challenged Ali Farokhmanesh’s three-pointer late in the game they might still be dancing.  Kansas State also removed the advisor of a campus newspaper after a “content analysis” determined that the paper was not sufficiently covering issues related to “diversity.”

Xavier is a private Catholic school unrated by FIRE.  But a student helpfully provides a discussion of school policies and actions on student expression–generally protecting free speech but understandably denying support for activities that oppose Catholic teaching.   

Pick–Xavier.

EAST

Kentucky v. Cornell

The University of Kentucky is one of the 20% of universities with a yellow light from FIRE, so it deserves some credit. 

Cornell is a quasi-public, quasi-private institution–a bit of an anomaly.  But whatever its state status, the school has garnered a red light rating from FIRE, largely because of the school’s vague and overbroad harassment and “bias” policies.  And this rating doesn’t even take into account the school’s treatment of Christian (and other) student groups which have been in limbo for months while Cornell decides whether or not it will honor the right of association.  More here on what FIRE has referred to as Cornell’s “tortured relationship with free speech.”   

Pick–Kentucky.

Washington v. West Virginia

This is a matchup of FIRE red light schools:  Washington and West Virginia.  Washington denied student teaching credit for a student who wanted to teach at a Catholic school claiming that the state’s Blaine Amendment forbade it from aiding religion in this way.  UW only backed down after an ADF lawsuit.  And West Virginia only abandoned its extraordinarily restrictive speech zone policy (limiting expression to two areas on campus) after a Rutherford Institute lawsuit.  But in this close matchup, it comes down to bench play.  The West Virginia Attorney General, the father of the President of the Hastings Democrats, joined an amicus brief supporting association rights on campus in CLS v. Martinez.  (See p.2 n.1).     

Pick–West Virginia but I’m not happy about it.

SOUTH

Duke v. Purdue

Purdue has a red light rating.  Among Purdue’s foibles was its near decision to require a Christian women’s group to drop the Christian part.  It backed down under pressure.  But as FIRE notes, Purdue has made strides.

Duke has a FIRE yellow light rating.  But its women’s center recently prohibited pro-life groups from using space.  And, while not technically a First Amendment issue, who would want the administrators that handled the Duke Lacrosse incident to be weighing the application of a speech code to you?  But more importantly, see guidelines 5 and 6.

Pick–Purdue.

Baylor v. St. Mary’s (CA)

This is a matchup of two private Christian schools.  Thus, neither have FIRE ratings.  In this situation, I’m going to fall back on otherwise irrelevant factors like basketball.  St. Mary’s is the Omar Samhan show.  And they’ve finally met their match in a big Baylor squad that can neutralize him. 

Pick–Baylor. 

THE FINAL FOUR

Tennessee (with its green light!) takes out Michigan State.

Xavier knocks off Syracuse.

Kentucky over West Virginia.

Baylor slips by Purdue.

The National Championship game is Tennessee v. Baylor.  It’s a close matchup, but in the end one of Baylor’s greatest strengths, it’s new President, and friend of the First Amendment, Ken Starr, trips it up as his much too pro-school authority position in Morse v. Frederick allows Tennessee to eek out a win and the national championship.

Georgia Tech: four years later

March 16, 2010

Four years ago today, Ruth Malhotra and Orit Sklar took a stand for liberty at their public university, or in this case, their Institute.  While students at Georgia Institute of Technology, Malhotra and Sklar were subject to discrimination because of their religious and conservative views.  Their experiences were not isolated, but designed by an administration hostile to free speech.  Georgia Tech policy prohibited “acts of intolerance,” limited student free speech to the small amphitheater on campus, preferred some religious denominations to others in campus training programs, and prohibited religious students from gaining equal access to student fees (even though the student fees were mandatory).  When these policies and their experiences became intolerable, they sued. 

The lawsuit eventually ended, but not until the speech code was removed, the student speech zone eliminated, and the religious discrimination stopped.  Along the way, did the campus community rally to their support in favor of free speech?  No.  Instead, people sent death threats, students started a group to intimidate Malhotra, and the administration created a council called “Finding Common Ground” to dialogue about diversity and criticize the efforts of these two women. 

Four years later, Malhotra and Sklar will speak tonight about their experiences and the success of their lawsuit at Georgia Tech.  Much was accomplished by these women, but there is still work to be done.  Despite Supreme Court case law to the contrary, Georgia Tech still believes it can exclude religious activities from student fee funding.  Who will be the next person to stand for liberty at Tech?

First CLS, Then the Klan?

March 2, 2010

Today, Professor Marci Hamilton and I debated Christian Legal Society v. Martinez at Cardozo School of Law in New York City.  Professor Hamilton argued that the Supreme Court should not hold that Hastings College of the Law violated the Constitution by refusing to confer registered student organization status on its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.

Prof. Hamilton asserted that the “bottom line question” in this case is as follows:  if the Court orders Hastings to recognize CLS, will public law schools be required to recognize the Ku Klux Klan?

Although it is not difficult to imagine that a Justice might ask such a question during oral argument, I find it hard to agree that this question is the “bottom line” in the case.  The bottom line is whether Hastings violated the Constitution by pressuring a religious group to subordinate its religious character.

During the “equal access” debates in the 1980s, opponents argued that requiring public schools to give student Bible clubs access to meeting space would lead to the proliferation of Nazi, skinhead, and Klan groups on campus.  Over 25 years after the adoption of the federal Equal Access Act, we can safely say that these fears were utterly unfounded.  The notion that groups of racist law students are poised to seek official recognition from America’s public law schools, just waiting for the Supreme Court to rule in CLS’s favor, is frankly preposterous.

More fundamentally, there is an enormous distinction between an entity engaging in invidious race discrimination and religious organization requiring its leaders and members to share its religious views.  A synagogue that requires its rabbi to be Jewish is not like the Klan.  A mosque that requires its imam to be Muslim is not like the Klan.  And a CLS chapter that requires its Bible study leaders to be a Christian is not like the Klan.  Sometimes, unfortunately, it is necessary to say what ought to be self-evident.

Passing The Buck

March 1, 2010

In my recent post, Student Fee Flop, a student at the University of Pittsburgh raised an excellent point that I thought deserved further discussion. Basically, the student said that the Student Government Board (SGB)—not the University—was in error when the SGB refused to allocate student activity fee funds to Students for Life because of the campus group’s pro-life viewpoint. But even though the SGB allocates the student activity fees, the University itself violated the Constitution. How is this so?

When it comes to student activity fees, public universities engage in a constitutional “bargain,” so to speak. A university wishing to impose a mandatory student activity fee to fund student speech must affirmatively ensure that those fees are allocated in a viewpoint-neutral manner, regardless of who does the allocating. A university that desires to fund only certain student viewpoints must relinquish the mandatory nature of the student activity fee. Pitt has chosen the former route, and so it has elected to shoulder the constitutional duty to ensure that the fees are distributed without regard for the views of the students requesting such funds. It cannot avoid this duty by passing the buck to the SGA. In fact, Pitt breached this duty even before SFL was denied funding, as it imposed the student activity fee without safeguards in place to prevent viewpoint discrimination. As the Supreme Court held in Southworth:

Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected.

To remedy this constitutional deficiency, Pitt must establish clear, precise and exhaustive standards to guide the SGB’s allocation decisions and to eliminate the subjectivity currently inherent in the process. Until that time, Pitt will violate the Constitution every time it exacts the student activity fee, and student organizations’ First Amendment rights will remain subject to the whim of the SGB.


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