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The (Many More Than) Seven Things You Can’t Say on Campus

April 8, 2010

In 1972 comedian George Carlin unveiled a profane comedy routine in which he uttered seven profanities prohibited on the public airwaves by the Federal Communications Commission. His “Seven Things You Can’t Say on Television” is often revered by self-styled civil libertarians on the left – even though the FCC regulations he was criticizing were upheld in FCC v. Pacifica Foundation in 1978.  Yet Carlin’s performance is iconic for some because of his stance against “the man.”

Today’s “man” isn’t the FCC, it’s the tax-funded university’s “Diversity officer” or  even its Dean of student affairs. But sadly the state of free speech on campus is no laughing matter, and the ACLU and its allies seem to have little to say about the egregious situation for free speech on campus. Public universities across the country routinely employ “harassment,” “bias incident,” and even computer use policies that prohibit not just a few choice words but entire subjects of legitimate conversation simply because someone – including eavesdroppers – might take offense or even find the conversation “annoying.” These policies, often collectively referred to as “speech codes,” stifle free speech either by their enforcement or by simply threatening to subject students to punishment if a listener reports them (as they are usually encouraged to do). The United States Court of Appeals for the Third Circuit has twice dealt with speech codes on high school and university campuses in recent years. Most recently ADF scored a significant victory for student speech rights in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008) where the Third Circuit held that the school’s sexual harassment policy was overbroad and could be used to punish core protected speech.
With two years distance from the DeJohn decision, however, public universities across New Jersey, Delaware, and Pennsylvania continue to hold on to egregiously unconstitutional speech codes that use much of the same language rejected in Saxe and DeJohn and inhibit expression and skew debate on campus by placing students at risk of substantial punishment if someone claims offense at what they say.

At Rutgers University, students are encouraged to report “bias incidents” by fellow students, including any “verbal, written … or psychological” act that “maligns” a person on the basis of a number of bases including religion, sexual orientation, and others. Such acts warrant “intervention” where they lose a student to “lose confidence in their ability to participate in the educational mission of the university.” So a conversation or an email about religious differences that the listener or recipient thinks “maligns” their religion warrants punishment. And if all that weren’t enough, the department responsible for deciding whether a student’s email or conversation is a punishable “bias incident” is the “Center for Social Justice Education and LGBT Communities.” The exact role of any kangaroos in the proceedings is unclear.

Similarly, at Cheyney University in Pennsylvania students can be punished for “spoken words” or any “production, display or circulation of written words, pictures or other materials” that offend a person on the basis of a number of bases from gender or “religious belief.” So a student circulating an image of Mohammed that is viewed by a Muslim student or stating their belief that faith in Christ is the only means of salvation is potentially subject to punishment if someone is offended by their speech. Delaware State University prohibits “offensive utterances” and Indiana University of Pennsylvania and Westmoreland County Community College in Pennsylvania prohibit certain speech that the school believes would create an “offensive … environment.”

And it’s not just these 5 schools that are receiving letters today that are the problem. Research by ADF allied attorneys shows a host of schools in the Third Circuit that retain egregiously unconstitutional speech codes despite clear precedent in the Third Circuit. For instance, Lincoln University in Pennsylvania prohibits students from engaging in “disrespectful, absurd and rude” behavior. I believe this is the first policy I’ve ever seen that violates itself. Isn’t engaging in “absurd” behavior a substantial part of university life? On the college campus it’s not just seven profane words that are prohibited, but a whole host of ideas and topics of conversation that are verboten.

Is this any way to run a marketplace of ideas? There is no more excuse for universities in these states to claim that they were unaware of the law. It is clearly established, they are in clear violation, and it is time for them to respect the rights of their students and the authority of binding federal courts. That’s why we are today launching an initiative to urge schools in the Third Circuit to eliminate their unconstitutional speech codes. The five schools mentioned above will receive today a letter pointing out the serious flaws in the university’s speech codes and offering to assist the universities in bringing their policies into compliance with the First Amendment. It is our sincere hope that each school will choose to revise its policies voluntarily and ensure that its students’ rights are protected. But if they do not, we stand ready to take the next step and protect these students’ rights in federal court. And if you’re a student who would also like to address the unconstitutional speech codes on your campus, please let us know. This is the beginning of this effort, not the end. Stay tuned.

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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.