Posts Tagged ‘Free Speech’

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.

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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.

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.

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.

Jewish Groups Split on CLS v. Martinez

February 21, 2010

JTA, which describes itself as “The Global News Service of the Jewish People,” has posted an article discussing the divergent choices various Jewish groups have made regarding Christian Legal Society v. Martinez.  As the article explains, some groups have filed “friend of the Court” briefs supporting CLS’s constitutional freedom to draw its officers and voting members from among those who share its religious commitments — both doctrinal and moral.  Others plan to file in support of the government or sit the case out.

The article features several remarkable statements by Deborah Lauter, the National Director of Civil Rights for the Anti-Defamation League.  First, she implicitly characterizes CLS as a group that is “opposed” to non-Christians and those who engage in extramarital sexual conduct.  It is profoundly unfair and misleading to characterize CLS’s statement of faith requirement as “opposition” to those who have different religious commitments.  The statement of faith expresses CLS’s core religious beliefs, positively articulating what brings its members together.  The idea that the founders and leaders of CLS started with some “opposition” to non-Christians and then wrote the statement of faith to express that alleged “opposition” is absurd.

Second, Ms. Lauter suggests that if CLS prevails, public universities will be rendered utterly unable to address actual invidious discrimination.  I continue to find it amusing that opponents of CLS’s position, finding themselves unable to mount a persuasive case against CLS itself, must resort to parades of hypothetical horribles.  Her remark reflects a conflation of real discrimination (invidiously taking irrelevant characteristics into account) and the means by which a bona fide religious group legitimately maintains its religious character over time.

Third, Ms. Lauter said that it is “antithetical to democracy” to allow religious groups that consider religion in their hiring decisions to participate in federally funded social service programs.  “Democracy” produced the 1996 welfare reform law, which acknowledged the right of such religious groups to participate in the provision of services to needy people with public money.  Large numbers of both Democrats and Republicans voted for this legislation, and a Democratic president (Bill Clinton) signed it.  Can one plausibly call their handiwork “antithetical to democracy”?  It appears as though “antithetical to democracy” means “stuff ADL doesn’t like.”

Hastings states that no group can deny voting membership and leadership to any student on any basis (not just on the basis of characteristics listed in Hastings’ Policy on Nondiscrimination, like race and religion).  Under such a policy, a student chapter of ADL would not be able to withhold voting membership or an officer position from an avowed anti-Semite.  Does ADL really believe that Hastings would not violate ADL’s constitutional rights by revoking its registered status under such circumstances?  Perhaps ADL is confident that Hastings would selectively enforce such a policy by, say, withholding registered student organization status from CLS while conferring such status on it.  That might not be an unreasonable assumption:  in 2004, Hastings conferred RSO status upon La Raza (“the race”) even though its bylaws expressly limited membership and leadership to those “of Raza background.”

From “In Loco Parentis” to Just Plain Loco

December 8, 2009

If it weren’t bad enough that some colleges and universities think they need to tell students how to think and what to believe, one public university has actually tried to force students deemed overweight—by the university—to exercise.

Beginning with entering students in 2006, Lincoln University, a public university in Pennsylvania, instituted a requirement that any student with a Body Mass Index (BMI) of 30 or more would be required to take a physical fitness course called “Fitness for Life” in order to graduate.  The students’ BMI was not self-determined—rather, it was determined through a mandatory exam by college officials.  If a student had a BMI of 30 or higher, they were required to take the fitness course in order to graduate.

Student Tiana Lawson protested the requirement in The Lincolnian:

I didn’t come to Lincoln to be told that my weight is not in an acceptable range. I came here to get an education which, as a three time honor student, is something I have been doing quite well, despite the fact that I have a slightly high Body Mass Index.

Ms. Lawson’s editorial brought national attention to this policy, and it was thankfully repealed last week after the university received several complaints. 

This is one of the more ridiculous university policies I’ve ever heard of—it is condescending, paternalistic, and intrusive, as Temple University Law Professor David Kairys points out.  There is nothing wrong with encouraging students to adopt a healthy lifestyle, but this policy crosses the line.  As Ms. Lawson pointed out, the students are there to receive an education, not to have their personal characteristics scrutinized by a “nanny” university.

Given their recent attempts to control the bodies and exercise schedules of their students, it is not surprising that the school also apparently attempts to control student speech.  Lincoln University has a “red light” rating  from FIRE with regard to its policies affecting speech.  One policy prohibits “actions, words, jokes, or comments based on an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic.” 

The irony of prohibiting students from simply making a “comment” about someone’s characteristics but essentially calling some of its students too “fat” to graduate was apparently lost on Lincoln.  Let’s hope Lincoln’s speech code soon goes the way of the fitness requirement, and Lincoln students are as free to exercise their First Amendment rights as they are to choose whether they want to exercise.

Eternal Vigilance is the Price of Liberty

November 23, 2009

What would you do if you found yourself face-to-face with injustice? 

An Iranian student named Mahmoud Vahidnia recently gave a new meaning to the phrase “speaking truth to power”.  During a question-and-answer forum at his school, Sharif Technical University, Vahidnia was given the opportunity to ask a question of supreme leader Ayatollah Ali Khamenei.

That courageous student used the opportunity to criticize the most powerful man in his country to his face—a country that recently sentenced some individuals involved in the post-election protests to death, and is well known for jailing and torturing political opponents and critics (including students).

As the AP reports (h/t Candace DeRussy at Phi Beta Cons):

The session began with a speech in which Khamenei told the students the “biggest crime” was to question the results of the June 12 presidential election that returned hard-liner Mahmoud Ahmadinejad to power. Khamenei himself declared Ahmadinejad the victor despite opposition claims of widespread fraud.

After the speech, Vahidnia raised his hand, then for 20 minutes he criticized the Iranian leader over the fierce crackdown on postelection protests, in which the opposition says 69 people were killed and thousands were arrested.

In brief excerpts broadcast on state TV, the thin, bespectacled Vahidnia was shown standing behind a podium, gesturing at times for emphasis.

“I don’t know why in this country it’s not allowed to make any kind of criticism of you,” said the student, wearing a long-sleeved blue polo shirt and appearing calm.

“In the past three to five years that I have been reading newspapers, I have seen no criticism of you, not even by the Assembly of Experts, whose duty is to criticize and supervise the performance of the leader,” he said, referring to the clerical body that chooses the country’s supreme leader.

This young student has become an unlikely hero overnight in Iran.  Khamenei has the power to do virtually anything he likes to Vahidnia in retribution for his criticism, but faced with the rare opportunity to speak directly to this man, Vahidnia chose to use it to speak out for liberty, despite the potentially catastrophic costs.  What bravery.

We are extraordinarily blessed to live in a country where we do not have to fear imprisonment for questioning our leaders.  But we are not immune to injustice, and too often, we find that many students are afraid to stand up to abuses of power.   Unfortunately, most universities will not change their ways when someone simply asks nicely.  Instead, it often takes a lawsuit — in some cases, it takes multiple lawsuits — to get public universities to comply with the Constitution.  And even when there is no censorship by the government, there are many students who self-censor out of fear, and take their rights for granted.  (David French previously wrote about this problem here). 

Without students brave enough to stand up for their constitutional rights, we are powerless to do anything to defend against the increasing curtailment of freedom on many university campuses.  And without students brave enough to exercise their constitutional rights, the First Amendment will become meaningless on campus.

Vahidnia stood before the supreme leader and spoke up for freedom, despite the fact that it could cost him his life.  In this country, we may not fear death as a punishment for standing up to the authorities—but we stand to lose that freedom if it is not jealously guarded.