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.”