Archive for September, 2009

Settlement in Sheeran v. Shea, et al.

September 29, 2009

Last week, District Judge Edward F. Shea issued an agreed order representing the settlement agreement in the case Sheeran v. Shea (no relation to the judge), et al. We commend the Community Colleges of Spokane (CCS) for their willingness to work out a settlement with Ms. Sheeran that brings their policies into compliance with the Constitution.

The order requires CCS to change the unconstitutional policies at issue in the case, as well as pay damages and attorneys’ fees. We view this as a huge victory for free speech on campus, since the CCS policies were some of the worst we’ve seen.

Aside from policies requiring prior approval (without standards) by administrators before students could do things like distribute literature or host an outside speaker, CCS policies actually allowed administrators to require students hosting an outside speaker to present opposing points of view! In fact, that was an administrator’s initial response to Beth Sheeran’s request to hold her pro-life event—it was “too one-sided” and since “Washington is a pro-choice state,” they would also have to include pro-choice information. IN A PRO LIFE EVENT.

If that wasn’t bad enough, CCS also had a couple of unconstitutional harassment policies, along with a program called “Stop The Hate”. Before we filed this lawsuit, students were encouraged to report on one another when they observed an “incident” of “bias”:

A bias incident, or hate incident, is an act of conduct, speech or expression to which a bias motive (relating to race, religion, disability status, ethnicity/national origin, gender or sexual orientation) is evident as a contributing factor regardless of whether the act is criminal.

Students also faced punishment for “offending” someone or creating a “hostile” or “offensive” environment, as subjectively determined by the observer. That is exactly what happened to our client, Beth Sheeran, and the other students. Their faculty advisor, in the presence of other administrators, told the students that their event violated “Stop The Hate” and state law, and if they offended anyone, they could face disciplinary action. She then asked, “You don’t want to be expelled, do you?”

Occasionally, I’ve talked with people who can’t believe that a college would actually try to enforce a speech code against so-called “offensive” speech. But the Sheeran case is a prime example of exactly what happens when colleges and universities curtail speech with overbroad, subjective policies. Even if the policy has what sounds like a noble goal (who likes “hate,” after all?), if the policy is worded in such a way that it can be applied to constitutionally protected expression on a subjective basis, two things will happen. One, students will read such policies and self-censor their speech, being careful not to “offend” others as a way to avoid potential punishment. Two, administrators will use the policies to curtail speech they don’t agree with. That is the problem with speech codes. They turn the college campus into a place full of people gingerly tiptoeing around each other, washed in shades of gray, instead of the challenging, teeming, vibrant marketplace of ideas it is supposed to be.

The Sheeran settlement was a great outcome not just for pro-life students, but for every student at the Community Colleges of Spokane. They all have more freedom to express their views and make their campus a true marketplace of ideas because of the bravery of one student who was willing to stand up and call her school out on their illegal policies.

The victory does not come free from a sense of foreboding, however. These “Stop The Hate”-type programs seem to have become vogue among administrator-types, and are cropping up at increasing numbers of schools. For example, FIRE recently convinced Cal Poly not to adopt a similar program, and after the ACLU of Nevada wrote a demand letter to UNLV about their policy, the chancellor decided to have it rewritten. These types of programs raise serious constitutional issues. And given their growing prevalence, something tells me the Sheeran case won’t be the last one to challenge them.

Advertisements

St. Louis University: Catholic in Name Only?

September 29, 2009

In the latest installment of a sad trend, another Catholic university has shortchanged its Catholic principles and heritage. In 2006, Georgetown University kicked a host of ministries off campus. This year, it concealed references to Christ to appease the White House. And of course, Notre Dame hosted a commencement speaker who completely rejects the Catholic Church’s stance on the sanctity of life, thereby minimizing the issue’s importance.  Now St. Louis University, a Jesuit school, joins this “elite” club.

Recently, St. Louis University blocked Young Republicans and Young America’s Foundation from bringing David Horowitz to campus to lecture on “Islamo-Fascism Awareness and Civil Rights.”  Apparently, the University feared that the event “could be viewed as attacking another faith and seeking to cause derision on campus.”  This ludicrous decision even prompted groups like the AAUP and College Freedom to defend Horowitz, something that itself is nigh unto miraculous.

Not only does the University overlook the heinous crimes committed in the name of Islamo-Fascism, but it also ignores its own religious heritage.  At this university founded by the Society of Jesus, would Jesus be allowed to declare:  “I am the way, the truth, and the life.  No one comes to the Father except through Me”?  After all, He implicitly “attacks” every other faith in the world with this statement.  Would Peter (the first pope in the Catholic tradition) be allowed to proclaim of Christ:  “Nor is there salvation in any other, for there is no other name under heaven given among men by which we must be saved”?  Or would these words, uttered during a confrontation with Jewish civil and religious leaders, be construed as attacking another faith and causing derision?

Like Georgetown and Notre Dame, the University responded to criticisms by invoking its “Catholic, Jesuit mission and values.”  But in light of its actions, one must wonder whether this is just a sanctimonious way of maintaining a religious facade while acting just like a secular university.

Memo to Universities: Students “Do Not Equal” Employees

September 29, 2009

Eugene Volokh recently commented on the latest ruling in Lopez v. Candaele, relating it to his prior criticisms of hostile environment harassment in the employment context. In doing so, he further undercuts the primary response universities raise when students challenge the speech codes all too often embedded in these harassment policies.

Like most employers, universities often prohibit students from doing or saying anything that might create a hostile, offensive, or intimidating environment.  Frequently, they do this as part of their sexual harassment policies, policies that apply to both employees and students.  And thus, they create a nebulous speech code for students on campus where no one really knows what they can or cannot say because everything depends on the reaction of the listener.

When students raise First Amendment objections to these speech codes, universities frequently insist that a ruling in favor of students’ free speech rights will upset the entire landscape of employment law and that the EEOC sexual harassment language is somehow invincible to constitutional attack.  This is why it seems that universities often just visit the EEOC website and hit “download” when drafting harassment policies.  In their minds, the EEOC language is the gospel of all harassment policies—no matter who those policies cover.  Indeed, Los Angeles City College made this argument in its recent motion and continues to do so

Yet this argument has failed every time it has been tested.  (In addition to DeJohn and Lopez, the Community Colleges of Spokane also recently changed similar harassment policies in response to another First Amendment challenge from the ADF Center for Academic Freedom.)  Why is this?  Well, while Professor Volokh may be right that hostile environment harassment has flaws even in the employment context, those flaws are magnified when dealing with college students’ speech.  Employers, obviously, have a great deal of control over what their employees do during work hours.  But college students are not university employees.  And as the Supreme Court noted in its 1972 Healy decision, the First Amendment applies on college campuses with the same force as in the community at large.  In fact, as Judge King noted in his preliminary injunction ruling, similar harassment policies are unconstitutional even in high schools, where students have fewer First Amendment rights than college students.  In other words, when analyzing how universities can treat their students, the proper analogy is the relationship between the government and its citizens, not employers and their employees.  The government cannot prohibit citizens from saying things that some might perceive as offensive, intimidating, or demeaning, and neither can universities do so for their students.  Thus, students should feel as free to speak their minds on campus—regardless of whether their opinions are controversial, unpopular, or administration-approved—as they do anywhere else in the community.  And universities must heed Justice Souter’s reminder as he spoke for the unanimous Hurley Court in 1995:  “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.”

Reaction by LACCD to Recent Lopez Ruling

September 24, 2009

On Monday, Heather reported on a federal district court’s recent ruling in Lopez v. Candaele, et al. upholding a preliminary injunction against the Los Angeles Community College District’s speech code. The speech code is nearly identical to one struck down by the United States Court of Appeals for the Third Circuit in DeJohn v. Temple University.  The Student Press Law Center interviewed me about the decision along with Kevin Jeter, Esq. (in-house counsel for the District). Here’s what SPLC reports Mr. Jeter said:

Kevin Jeter, in-house counsel for the LACCD, said the district is pursuing the case because the wording in its speech code was based on California law. The debate is about the constitutionality of the speech code suggested by the state legislature, he said.

“It has to do with whether or not the district was right in following the law,” Jeter said. “The question is; ‘can you be sued for doing what the law tells you to do?’ I think the fundamental answer is no … even if the law is wrong.”

But California law does not require the District to use a particular definition of harassment in community college speech codes. In fact, immediately after the preliminary injunction hearing, the District filed papers with the Court notifying it of a “new” harassment policy that had allegedly been in place for a year. This policy does not use the harassment language purportedly required by California law.

Yesterday, the District filed a notice with the United States Court of Appeals for the Ninth Circuit, indicating that it intends to pursue an appeal of the preliminary injunction ruling–and defend policy language it believes is mandatory under California law, but which its allegedly “new” policy does not contain.

Sacrificing to speak for unborn children

September 24, 2009

I’ve written before on our old blog about the Campus Pro-Life student group at the University of Calgary because the situation is so outrageous and American universities often mimic free speech denials that have occurred at Canadian universities. Lifenews.com reports that even though the Campus Pro-Life students will go on trial in November for criminal trespass, and even though the student union denied them official recognition, they are persevering and continuing to speak on campus:

The members of the Campus Pro-Life group at the University of Calgary aren’t letting a little thing like charges of criminally trespassing on their own campus stop them from speaking out against abortion. They are putting together a new pro-life display despite an expected court appearance in weeks.

Six University of Calgary students pleaded not guilty in March to the bogus trespassing charges.

They were arrested in February and charged after they set up a pro-life display college officials initially allowed but said they didn’t want shown.

When UC officials warned members of Campus Pro-Life that they had to restrict their own pro-life display, the students refused to comply.

Now, the pro-life students are back with their graphic display on campus even though university officials have infringed on their free speech rights and told them to take them down. They have also threatened the students with non-academic misconduct procedures.

“We are innocent until proven guilty, so we have every right to be here,” the pro-life group’s president, biology student Leah Hallman, told the Calgary Herald. “If we didn’t do this, we would be consenting that we are doing something wrong, and then who would be here to speak for the unborn?”

The trial is set for November 4 and, until then, the University of Calgary has said the students can’t set up the abortion display, but officials will not forcibly remove it.

“The university reiterates that it will not seek to physically remove the group or its signs,” a statement it released says. “This action would elevate the risk of confrontation and give the organization the publicity it is seeking. The university is working to have this issue resolved in an appropriate manner.”

The University wants this free speech black eye to go away quietly and is resolving it in an “appropriate manner”–through criminal trespass charges.  But no student should be subject to criminal sanction for engaging in free speech on campus, and I applaud the group for continuing to speak despite all they have endured.

Court affirms reasoning of DeJohn once again

September 21, 2009

On Wednesday, Judge George A. King of the United States District Court for the Central District of California again rejected the Los Angeles Community College District’s arguments in favor of its speech code in Lopez v. Candaele, et al. The order denied the District’s motion asking the court to reconsider its previous ruling issuing a preliminary injunction against the District’s sexual harassment policies.

In his order, Judge King rejects every argument the District makes, devoting an entire section of the opinion to address what he calls the District’s “scattershot” and “disjointed” arguments with regard to the applicability of DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008):

Finally, Defendants criticize DeJohn as a singular case and not well reasoned. (Motion 14). We think that DeJohn is well reasoned. Moreover, Defendants are unable to cite any case where a similar policy survived a constitutional challenge in a college setting so that it might arguably be said to conflict with DeJohn. To the contrary, the Third Circuit has rejected a substantially similar policy even in an elementary and high school setting. Saxe v. State College Area Sch. Dist., 240 F.3d 200, 216–17 (3d Cir. 2001). Thus, Defendants’ scattershot and disjointed arguments do not defeat the reasoning of DeJohn.

Astute observers will recall that DeJohn (which was litigated by ADF) is the leading case on speech codes and sexual harassment policies in the college setting. Yet the District argued that this opinion, which was applauded by free speech advocates like FIRE and Eugene Volokh, was “poorly reasoned.” The basis for this argument? Not conflicting case law from the Ninth Circuit—as a matter of fact, there is no conflicting case law whatsoever. (As Judge King pointed out, “Defendants are unable to cite any case where a similar policy survived a constitutional challenge in a college setting so that it might arguably be said to conflict with DeJohn.”)

Nay, friends—the support for this argument came from the pen of a law student in a shockingly poorly written comment in the Harvard Law Review. Aside from the fact that the opinion of a law student carries infinitely less weight than a well-reasoned opinion from three federal appellate judges (at least on this planet), the comment manages to criticize DeJohn without citing any of the many cases striking down speech codes on college campuses across the country. Coming from such a respected publication, such shoddy scholarship obviously created quite a bit of controversy.

The comment itself has already been discredited by the legal community, and it was ripped to virtual shreds by Kelly Sarabyn of FIRE and our own David French. Now, with this latest opinion in Lopez, a federal judge has weighed in as well. Public universities may not like it, but DeJohn is here to stay. The District appealed the court’s ruling on the preliminary injunction to the Ninth Circuit, so if they continue to pursue the appeal in light of Judge King’s latest rejection of their position, we may get a chance to hear what the Ninth Circuit has to say about DeJohn. But given the force of case law behind the opinion and the strength of its reasoning, it’s hard to believe they will differ.

In the college of the future, where will we speak?

September 19, 2009

Peter Wood postulates an amusing, though far-fetched view of higher education in the year 2030 in this National Association of Scholars piece. My question is what becomes of the ability of students to advocate their views in the marketplace of ideas? Wood finds that future universities will be online exclusively and that the physical campuses of old will be turned into “entertainment complexes catering to America’s main international industry, casino gambling,”  “assisted living facilities for the elderly,” or “youth detention centers and low-security prisons.” 

I suppose if Wood’s theory proves true, college students of the future will use the Internet for communicating their ideas, much like they do today.  Though, I wonder if the private corporations that operate Facebook, Twitter, and the like will continue to allow such open discussion.  And do we want to place such decisions in their hands?  Regardless of their good intentions to keep the Internet open and free, the Constitution does not restrain these private entities like it does public institutions.  (Although, many public colleges and universities today don’t comply with the First Amendment as required to, so maybe there’s little to lose.)  Nevertheless, even if students of the future are not speaking on physical college campuses, perhaps, as Wood suggests, they will be speaking in their home towns and become agents of change in the real world. 

Who knows what the next 20 years in higher education will look like.  I doubt the traditional college will fade away so quickly–after all it has existed for centuries.  But as we look forward we must ask, “are we increasing the ability of students to speak equally?”  I hope that in 20 years, the answer is, yes.

Freedom with Responsibility: How Christian students can change their campus

September 15, 2009

Ordered liberty is the answer to today’s leftist academy and morally depraved student population–that is the solution proposed by David French in this article. French argues that leftist attempts to create a utopian campus culture have backfired in the worst way, with students embracing morally debased actions over moral virtue. For example, feminists’ attempt to indoctrinate students with their vision of an ideal male (“less aggressive, more emotional, and subservient to women”), has backfired and caused many college males to embrace the worst aspects of their sinful nature–binge drinking, sexual promiscuity, and unrestrained, testosterone-induced deviousness.  French writes: 

Millions of college students have answered political correctness with hedonism, defying feminist and multiculturalist scolds with hoisted beer glasses and libraries full of Girls Gone Wild DVDs.  If this is the current state of student rebellion (and it is), then it’s terrible news for our culture and a disaster for conservatism.  It is the rejection of one form of vice (leftist thought control) for other, equally destructive vices that will have enduring, negative effects on our civil society. 

Exactly.  The hypocrisy of the campus left is that while speech codes and nondiscrimination policies are vigorously enforced against Christian student organizations, college administrators turn a blind eye to the campus party circuit.  As a college freshman over a decade ago, my dorm was known for its weekly “malt liquor Thursdays,” the purpose of which was to see how many 40s one could consume in a night.  And this wasn’t a college ranked on Princeton Review’s party school list, this was one of America’s elite universities.  While our residential assistants conducted the school’s mandatory diversity training sessions by day, by night they were part of the Dionysian festival on the third floor. 

The sad truth is that the campus left is so concerned with tolerance and diversity training that it does not realize it is stoking the fires of a morally depraved student culture.  Administrators shriek in horror when a Catholic student group receives student activity fees to fund its activities, some of which might include prayer and worship.  But the same administrators wholeheartedly embrace the funding of student groups whose sole purpose is to teach fellow students who to have more premarital sex. 

There was a slogan painted in the atrium of my public high school:  Freedom with Responsibility.  As French writes, it is time for Christian and conservative students to not only challenge the speech-restrictive culture on campus, but also to advocate for ordered liberty on campus among their fellow students.  Otherwise, they may be able to speak, but their peers won’t be listening.

“Taking the Right Seriously”: What a Notion!

September 15, 2009

At The Chronicle Review, Mark Lilla writes about the University of California at Berkeley’s new Center for the Comparative Study of Right-Wing Movements. Admittedly, studying conservatism at Berkeley seems to rank among the ultimate oxymorons. And seeing as it is housed in the Institute for the Study of Social Change (which is dedicated to placing “issues of race, gender, and class at the center of the agenda”), the Center appears to study conservatives the same way medical researchers study lab rats, as curious but vastly inferior creatures.  Even the Center’s name has a pejorative ring, lumping American conservatives in with every other global “right-wing” movement, which even Dr. Lilla notes is unfair and inaccurate. 

Whatever the Center’s merits may be, Dr. Lilla’s article highlights the overwhelmingly and pervasively leftist environment that is modern academia.  Recent studies show that leftists outnumber conservatives by at least eight to one in most departments, and Dr. Lilla confirms this “embarassingly accurate” picture, noting that it is “foolish to deny what we all see before us”:

Over the past decade, our universities have made serious efforts to increase racial and ethnic diversity on the campus. . . .  Well-paid deans work exclusively on the problem.  But universities show not the slightest interest in intellectual diversity among faculty members.  That wouldn’t matter if teachers could be counted on to introduce students to their adversaries’ books and views, but we know how rarely that happens.  That’s why political diversity on the faculty does matter.  As it stands, there is a far greater proportion of conservatives in the student body of typical colleges than on the faculty.  A few leading thinkers on the right do teach at our top universities–but at some, like Columbia University, where I teach, not a single prominent conservative is to be found.

And he underscores this picture with some personal vignettes, showing how most academics view conservatism and conservatives as topics unfit for polite conversation.

Dr. Lilla continues by noting that “the blackballing of conservatives and conservative ideas is by now instinctive and habitual rather than self-conscious, reflecting intellectual provincialism more than ideological fervor.”  As bad as intentional discrimination is, this subconscious discrimination is even worse because it means that ideological litmus tests for professors seeking employment, tenure, and promotion are so widespread, so well-entrenched, and so universally accepted that universities do not even recognize that a problem might exist.  Indeed, as an “ex-conservative,” Dr. Lilla observes that even he was “lucky” to have landed an academic position and received tenure.

But after diagnosing the ills of modern academia, Dr. Lilla stumbles a bit when prescribing a cure.  At first, he takes pot shots at people like David Horowitz, who merely highlight the same systemic disease that he does.  Later he endorses special courses in conservative thought, where students read selections from some of the greatest conservative authors in recent history and debate their ideas.  While he cannot resist caricaturizing conservatives as uncivil acolytes of the Horowitz bogeyman who spout nothing but cliched Fox News talking points, he ends up endorsing a novel vision for universities–the marketplace of ideas, where a wide variety of perspectives are debated vigorously and freely.  Indeed, this almost sounds like the Supreme Court’s Keyishian decision, which said:  “This Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”

But Dr. Lilla largely overlooks the obvious and long-term solution to the ideological imbalance on campus:  treat conservative and Christian scholars just like everyone else.  He tries to resolve a personnel-based, personnel-created problem with a program-based solution.  Yet this approach ignores his previous admission that “political diversity on the faculty does matter.”  If universities are to have this unfettered, uninhibited exchange of ideas on campus, they will have to hire, tenure, and promote conservative scholars without regard to their political, ideological, or religious beliefs.   As Keyishian noted, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”  Nor does it tolerate university litmus tests–whether acknowledged or not–that produce and perpetuate the gross ideological imbalance in what is supposed to be the marketplace of ideas.

Professor Fired for Questioning College’s Sexual Harassment Policy

September 15, 2009

FIRE reports that a professor at East Georgia College was fired after he noted that the college’s sexual harassment policy provides no protection for the falsely accused. If true, EGC could be staring at a First Amendment retaliation lawsuit that will raise interesting questions about the scope of the Supreme Court’s holding in Garcetti v. Ceballos as applied to college faculty.  There, the Court held that public employees do not have a right to free speech when acting pursuant to their official duties.  However, the Court specifically stated that educators are exempt from this standard.  Nevertheless, some colleges have already argued that Garcetti gives them absolute authority over what their faculty say on and off campus.  I’m glad FIRE’s involved and hope that EGC sees the error of its ways.