The New Victorians Strike Campus Yet Again (VIDEO)

By Greg Lukianoff

While they are rightfully accused of being hyper-politically correct, college campuses these days sometimes seem downright Victorian. Take, for example, the case of Isaac Rosenbloom, a student whose quest to complete college so he could become a paramedic was nearly ended after he complained to another student about an assignment after class. Rosenbloom told his classmate that the grade he got on the assignment was “going to fuck up my entire GPA.” When his professor overheard him, she threatened the 29-year-old father of two with (I kid you not) “detention.” Rosenbloom was brought up under the charge of “flagrant disrespect of any person”—an actual offense at Hinds Community College in Mississippi.

Check out Isaac’s story in this new video.

One might think that such a ridiculous incident would quickly resolve itself as soon as the charges got in front of the university counsel. But one would be wrong. Horribly, horribly wrong. Ignoring cases like Cohen v. California (1971) and, even more on point, Papish v. Board of Curators (1973), the administration went ahead with a surreal hearing. Rosenbloom was found guilty of “flagrant disrespect,” given 12 “demerits,” and was no longer eligible for his Pell Grant, (which effectively meant expulsion for Rosenbloom). The university only backed down after my organization, the Foundation for Individual Rights in Education (FIRE), found a lawyer for Rosenbloom and secured a favorable settlement in July 2010.

Cases like this are not rare on campus. Indeed, just as the Isaac Rosenbloom case was ending, the perhaps even sillier swearing case of Jacob Lovell at the University of Georgia was just beginning (you can watch a video about his case here, complete with Lex Luthor allusions). As I pointed out last fall when I unveiled a video about a professor who vandalized a “free speech wall” in Texas because someone had written “fuck Obama” on it, if there is one thing that seems to unite the Right and Left on campus, it is that some subset of both groups really, really hate swearing. Because of this fact, unfortunately, campus administrators are too often able to get away with punishing students for cases that involve swearing.

I tried to call out this practice in my book Unlearning Liberty: Campus Censorship and the End of American Debate. While swearing is sometimes the purported justification for punishment, it is clear that in case after case students are not really being punished for swearing, they are being punished because they swore in the process of complaining about the university.

Lately it seems as though the “campus censors as Victorians” theme is popping up all over the country. Just last month one college in upstate New York banned a campus event involving a gay porn star, another college in New Mexico shut down the student newspaper after they produced an issue about sex, and in an ongoing saga, a professor at Appalachian State University was suspended after showing a graphic video that was critical of the adult film industry.

Today’s campus censors appear to be haunted by the spirit of Anthony Comstock, and they’re likely to have the same level of success in the long run that Comstock did. But in the meantime, these efforts to appease the uptight are doing real damage by harming discourse on campus, impoverishing the marketplace of ideas, and higher education just a little bit dumber.

Greg  Lukianoff is the president of Foundation for Individual Rights in Education (FIRE).  He is also the author of “Unlearning Liberty: Campus Censorship and the End of American Debate.”

It’s a Beautiful Thing, the Destruction of Words.

First Amendment BAMF The Foundation for Individual Rights in Education (“FIRE”) defends individual rights at American Colleges and Universities from the barrage of attacks on free speech and free expression. Every month, FIRE features an institution of higher learning that should be ashamed of itself for enacting a speech code that is, at best, terrible. This month’s honoree is the University of North Dakota (“UND”) for its delightfully well-written policy that defines harassment as:

“[U]nacceptable behavior, which can range from violence and bullying to more subtle behavior such as ignoring an individual at work or study. It subjects an individual or a group to unwelcome attention, intimidation, humiliation, ridicule, offense or loss of privacy. It is unwanted by the recipient and continues after an objection is made.”

Source.

Universities have long been thought to be the last gleaming hope of free thought and expression. It is also generally accepted that college campuses are bastions of left leaning philosophies that champion speech and expression. Imagine the shock and chagrin, then, when one discovers that UND isn’t the only member of the “liberal” American higher education system that quite possibly poses more of a threat to First Amendment rights than the government. But before you conservatives and libertarians start squealing and pointing the shame finger at the nearest hippie, sit down, shut up, and read “Unlearning Liberty: Campus Censorship and the End of American Debate”, by First Amendment super BAMF and FIRE president Greg Lukianoff.

In his book, Lukianoff gives a very real and very scary glimpse into contemporary American academia. No longer a shining beacon of differing viewpoints and the relentless pursuit of intellectual honesty, the typical American university is a quagmire of self-serving administrative officials, apathetic faculty, and a woefully ignorant student body. Lukianoff deftly sheds light on the evolution of censorship policies that have been unilaterally enacted by weak-minded bureaucrats who want to stamp out criticism and dissent. Policies that are enforced without a glimmer of due process for the offender and without so much as a peep from the student body. Policies that may be in response to legislation at both the state and Federal level.

As someone once said, “The philosophy of the school room in one generation will be the philosophy of government in the next”. If so, we’re in for a world of hurt. Unlearning Liberty is a must-read for every First Amendment defender out there. It will scare you, piss you off, and maybe even make you cry, but hopefully it will also inspire you to wake up, stand up, and speak up.

Let the punishment fit the crime?

This year, Highland Middle School in Anderson, Indiana purchased iPads as an enhancement tool for student education.  Unfortunately, the teachers weren’t given a crash course on how iPads work before the tablets were introduced to the kids.  One teacher at the school decided to take some topless photographs of herself on her iPhone and proceeded to accidentally sync her naked pics to one of the school’s iPads.

Inevitably, four boys borrowed the offending iPad, opened up iPhoto, found themselves confronted with their teacher’s boobs, and did what any 13 year old boys would do in that situation.  They turned the iPad over to the administration so that other students wouldn’t see the photos.  Wait, what…?

Alright, these may be the most honorable 13 year olds on the planet.  So, of course, Highland Middle School recognized this and gave the boys the credit they deserved for not circulating their teacher’s naked chest all over the school.

Actually, no.  One of the students was given a warning.  Two were suspended.  And the fourth was expelled.

Highland Middle School is defending the punishment, claiming that the students violated its technology policy.  However, the school won’t explain how.  While the school tries to figure out what, exactly, these kids did wrong, the rest of the country can be thankful that they don’t live in Anderson, Indiana.

ACLU sues after middle school girls expelled over Facebook comments

The ACLU filed a complaint in the Northern District of Indiana against the Griffith Public School district after it expelled three middle school girls for a lengthy conversation they had on Facebook outside of school hours.  According to the complaint, the conversation “spanned numerous subjects,” beginning with one girl complaining on her Facebook wall about cutting her legs while shaving (#FirstWorldProblems), before turning to which classmates they would kill if given the chance. The comments were littered with the typical cutesy teenage girl sprinklings of emoticons, OMGs, and LOLs, and most of the comments were directed toward the “ugly” girls, a la Mean Girls fashion. The comments were contained to Facebook, and subject and post were not discussed on campus.

Two days later, after another person presented a screen shot to school administrators, the girls were expelled from school for violating student handbook policies on bullying, harassment, and intimidation.  Griffith Public School later informed the girls they were expelled for the remainder of the school year, but would be able to continue to the ninth grade the following year.

The ACLU contends that this action was a violation of the students’ First Amendment Rights, as the comments were “clearly made in jest” and did not constitute a “clear threat.”  The ACLU also states in the complaint that the comments did not disrupt school activities.

Students notoriously have very few rights, and schools generally have had wide latitude to punish activity outside of school.  It will be interesting to see how the case proceeds.

High school drama students get lesson in homophobia, censorship

Students in the drama department of a Baltimore high school are fighting back after Hartford County School officials censored a scene from an upcoming production of “Almost, Maine.” The production, which is set to open on Nov. 10 at Bel Air High School, includes nine mini-dramas exploring falling in and out of love. The American Civil Liberties Union stepped in on behalf of the students when school officials took out a scene featuring two men professing their love.

The students say they are still prepared to perform the scene, called “They Fell.”

The scene at the heat of the debate features a humorous discovery of mutual attraction that doesn’t include any references to sexual behavior, and is even less suggestive than other scenes the school chose to leave in, where students kiss, remove clothing and leave the stage, suggesting sexual activity.

According to ACLU of Maryland Legal Director Deborah Jeon, much of the play focuses on the characters falling in love; the only difference here is that the two people in this scene both happen to be men.

So as Hartford County School officials are likely thinking right now, let’s get this straight: the Bel Air High School drama students are allowed to remove clothing and hint at sex as long as it’s between a male and female student. But an innocent scene between two men humorously sharing an exchange of love, which does not even hint at sexual activity, is somehow inappropriate for high school students to depict.

The students at Bel Air High are seeing right through it to the underlying issue of homophobia.

“I think it is important to speak out against homophobia and discrimination, and the full play can help students better understand that love is not something to be feared,” Julia Streett, a sound engineer with the production and the president of the school’s gay-straight alliance, said in a press release.

The students of Bel Air’s drama department are getting an early education on First Amendment and gay rights. We live in a country that glamorizes celebrity weddings like Kim Kardashian’s 72-day PR-debacle, but still shudders at two men sharing a legitimate exchange of love. The only reason for the school’s censorship is homophobia, pure and simple. Kudos to the high school students at Bel Air High School for being more accepting than the adults running the show.

5th Circuit Rules in Favor of Student Speech Rights

The Fifth Circuit Court of Appeals ruled that students who handed out christian-centric materials to other students had a First Amendment right to do so. School principals who prohibited this student-to-student speech violated the students’ First Amendment rights, the Court held.

“We hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech,” Judge Jennifer Walker Elrod wrote in a part of her opinion, joined by nine of the 16 participating judges. “Therefore, the principals’ alleged conduct—discriminating against student speech solely on the basis of religious viewpoint—is unconstitutional under the First Amendment.” (source)

I guess I have to say “yay Jesus!”

University Pig Decides She Will Not Tolerate a Challenge to her Authoritah

A professor at University of Wiconsin – Stout, put up a poster from the sci fi series, Firefly. The poster had some macho shit on it about where and when the character would kill one of his enemies. Some worthless fuckhead in the school’s administration (Lisa Walter, the chief of police) lost her shit, and hadthe cops come tear down the poster.

Miller was contacted by Lisa Walter, the chief of police/director of parking services, and informed that “it is unacceptable to have postings such as this that refer to killing.” She also warned the astounded professor that any future such posts would be removed and would cause him to be charged with disorderly conduct. (source)

So the professor put up this poster in its place:

And so Chief Walter said “ok, point taken,” and gave the professor back his original poster, and everyone learned a nice lesson about the First Amendment.

NAH, Just kidding.

Chief Walter decided that disobedience of her authoritah would not be tolerated, so she sent cops back to the professor’s classroom to tear down that poster too.

with Chief Walter claiming this time that the problem was that the poster “depicts violence and mentions violence or death.” She went on to say that “it is believed that this posting also has a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat.” Seriously. (source)

As if the Victim Studies departments on college campuses had not done enough damage to free expression, here come the TSA agent rejects. Fortunately, the Foundation for Individual Rights in Education is on the case.

Student Suspended for Saying Homosexuality is Wrong

A Texas teenager expressed his opinion that, since he is a “christian,” he believes that homosexuality is wrong. Makes sense. This magic space zombie jew created heaven and earth, but the thing that really makes him mad is if two guys’ dicks touch.

His teacher wrote him up for expressing his opinion, and the school suspended him.

I’m all for giving the kid a smackdown, but like his speech or not, it was his First Amendment right to express his opinion. As long as he wasn’t being disruptive in class (and nothing in the story indicates that he was), then it seems pretty clear that the school stepped over the line. There is a report that the kid often brings up the issue, any chance he gets, in an effort to harass his teacher (who he seems to think is gay). But, even then, suspending him for frequently expressing his opinion is troubling.

Unfortunately, the Dallas Voice, a LGBT website has jumped in on the side of the teacher. (source) I find it most unfortunate that the Dallas Voice is jumping in on the side of “its tribe,” instead of the greater principle of freedom of expression.

The cause of equality would be far better served by gay rights groups standing up in favor of the kid’s right to express himself.

Lake County, FL instituting inartfully drafted student dress code

By J. DeVoy

In a wise response to budget cuts and other crises facing Florida’s public schools, Lake County’s School Board has set the stage to impose a dress code that bans “unnatural” hair colors, “extreme” hair cuts, and the use of makeup that is “disruptive or does not allow direct eye contact.”  I don’t see how makeup precludes eye contact, either, though it maybe disruptive – it would make more sense if that provision applied to hair; maybe Lake County was banning the devilock a few decades too late.

The proposed code also sets rules for dress hemlines, skorts, skirts and shorts, none of which can be more than 2 inches above the knee.  Since students and/or parents are incapable of determining these things on their own, too, the propose policy gives instruction on the proper use of clothing, advising that “clothes shall be worn as designed.”

Mendacious as educators and school administrators often are (or maybe my perceptions are skewed from Catholic education), the new policy is aimed at banning “extreme” styles because they can be “dangerous.”  Maybe the policy cites instances of increased fighting among groups of students identified chiefly by their clothing, or details specific risks of, say, falling down the stairs in saggy pants or with a haircut that obstructs one’s line of sight.  Then again, this is Florida, and I doubt any such stated rationale exists.  But never mind that: Won’t someone think of the children?  We don’t think about the children enough in this ruined hellscape of a country.

The Lake County School Board will have a final vote on the policy August 22 – the day the policy is supposed to take effect.

Student speech codes: A year+ in review

By J. DeVoy

Greg Lukianoff and Azhar Majeed of the Foundation for Individual Rights in Education (FIRE) recently compiled two years’ worth of academic publications mad possible through FIRE’s Jackson Legal Fellowship.  If you’re in a position to make end-of-year donations, you may do so here.  FIRE is on the list of Satyriconista charities.

[N.B., the following article descriptions were written by FIRE.]

“The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights,” by Azhar Majeed
Published May 2009, The Journal of College and University Law (Notre Dame Law School)
This article argues that colleges and universities often misapply sexual and racial harassment law to the detriment of campus speech rights, and that in doing so they are misreading their obligations under Title IX and Title VI to prevent true harassment of students.

“Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes,” by Azhar Majeed
Published November 2009, Georgetown Journal of Law & Public Policy
This article argues that campus speech codes violate the free speech rights of university students, and that in spite of having been deemed unconstitutional by an unbroken series of court decisions, colleges and universities continue to maintain doctrinally flawed speech codes.

“Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights,” by Azhar Majeed Published October 2010, Cardozo Public Law, Policy and Ethics Journal
This article argues that courts should not grant qualified immunity to university administrators when they are sued for monetary damages in their personal capacity for violating students’ free speech rights because the law is so clearly established with respect to First Amendment rights on campus.

“The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students’ Free Speech Rights,” by Kelly Sarabyn
Published April 2009, Texas Journal on Civil Liberties & Civil Rights (University of Texas at Austin)
This article examines the history of the 26th Amendment and demonstrates that it was intended to make 18-year-olds full-fledged citizens, and therefore to end the in loco parentis university. It also argues that since most college students are 18 or older, and most high school students are under 18, the 26th Amendment produces a clear line between the two institutions, and dictates that college students cannot be treated like high school students for the purpose of free speech.

“Free Speech at Private Universities,” by Kelly Sarabyn
Published April 2010, Journal of Law and Education (University of South Carolina Law Center and the Louis D. Brandeis School of Law University of Louisville)
Many private universities promise free speech for students and faculty, but then have fine print policies proscribing offensive or harassing speech. This article argues that when such conflicting policies or promises exist, courts should enforce the promises private universities make in light of the reasonable expectations of the student. At liberal arts and research universities, students would reasonably expect to have free speech on campus, and thus the contracts should be interpreted accordingly. This allows private universities to proscribe speech if they wish, and thus respects the right of private association, but it allows universities to do this only if they do so clearly and publicly.

“Prescribing Orthodoxy,” by Kelly Sarabyn
Published June 2010, Cardozo Public Law, Policy and Ethics Journal
This article studies the right to freedom of conscience as it manifests itself in various constitutional doctrines and demonstrates how this right against governmental orthodoxy prohibits colleges from implementing programs that seek to mold students’ ideological beliefs with coercion.

“Measuring a Degree of Deference: Institutional Academic Freedom in a Post-Grutter World,” by Erica Goldberg and Kelly Sarabyn
Published November 2010, Santa Clara Law Review (Santa Clara University School of Law)
By resolving the ambiguities presented by the Supreme Court’s decision in Grutter v. Bollinger, this article establishes a framework for affording institutions deference for their decision-making. Institutions may invoke academic freedom only for decisions that are truly academic and do not trample upon the First Amendment rights of students and faculty, and should receive different amounts of deference depending on what body within the institution is making the academic decision at issue.

“Must Universities ‘Subsidize’ Controversial Ideas?: Allocating Security Fees When Student Groups Host Divisive Speakers,” by Erica Goldberg
Accepted for publication as lead article, George Mason University Civil Rights Law Journal
This article creates viewpoint neutral rules to govern the assessment of security fees so as not to punish student groups who wish to sponsor a controversial speaker’s visit to campus.

All of these articles can be read at FIRE’s online publication The Lantern.

 

Advice to Law Students looking for a job — don’t be a goddamned crybaby

Popehat has a bad-ass post on an “incident” at Syracuse University School of Law. The short version is this: Syracuse Law student Len Audaer published a blog satirizing his class, the administration, and public figures.

From Popehat’s story.

Somebody complained. Syracuse decided to appoint a “prosecutor” to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn’t immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, “in order to prevent misleading selective posting of information.”

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain’s preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving “fair” coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

Remember what the “misconduct” is — a satirical blog.

This profession is full of uptight effete fucking pussies with sticks up their asses. You know why? Part of it is because the profession seems to attract them. But, the bigger part of it is that law schools cultivate uptight stick in the ass pussydom. Of course, just like a good TSA agent, or other low-rung pussy, Professor Germain whines that he is “just doing his job,” and he just wants the individuals who whined to be able to maintain their anonymity.

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Again, why write my own words when Popehat knocks the shit out of it:

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be “attacked” on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That’s because I’m not a fucking idiot. Perhaps the subjects of Audaer’s blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse’s excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That’s common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say “Vance Victim couldn’t have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night,” or “Vance Victim is the same guy who threatened to accuse me of assault twice last year”, or “Vance Victim is a person with a reputation for being a liar and a cad.” In short, That’s why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It’s just not the point he thinks he has. It’s irrational to think that employers will be put off because a humor blog satirized you. However, it’s entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.

Precisely.

Now I don’t hire very often. When I do, I have a very strict “no fucking pussies” screening process. And, if you get past me, you are sure as shit not getting past my partner, Jessica, who is less tolerant of pussies than I am.

I will tell you one thing for certain: I won’t even interview a Syracuse Law graduate who doesn’t publicly speak out against this travesty, and I would encourage all other lawyers and law firms to take the same stance.

To follow this case more:

Len Audaer’s site on the case. (here)

FIRE’s file on the case. (here)

And if you’re looking for an end-of-the-year charity, donate to FIRE here.

Third Circuit to Public Colleges: Enough With the Speech Codes

By William Creeley, Special to the Legal Satyricon

The United States Court of Appeals for the Third Circuit’s decision in McCauley v. University of the Virgin Islands, issued last Wednesday, is a big win for student speech. For the second time in two years, the Third Circuit has struck down a public university’s speech code on First Amendment grounds — and that’s reason to celebrate for anyone who agrees that the “college classroom with its surrounding environs is ‘peculiarly the marketplace of ideas,'” as the Supreme Court eloquently put it in Healy v. James, 408 U.S. 169, 180 (1972) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)). As Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education (FIRE; thefire.org), a non-partisan nonprofit organization dedicated to defending the First Amendment rights of college students and faculty, I can tell you that I was pretty thrilled by the outcome.

But my personal enthusiasm notwithstanding, McCauley has received scant notice, garnering little more than cursory mention from the Chronicle of Higher Education and Inside Higher Ed. Maybe all the reporters working the college beat are on vacation; maybe the idea of a university in the Virgin Islands strikes assignment editors as inherently suspicious. Whatever the reason, the lack of coverage is regrettable: McCauley is a very important ruling for free speech on campus.

To put McCauley‘s significance in proper context, let’s first review the Third Circuit’s other recent defense of student expression. In DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), the Third Circuit knocked out Temple’s former sexual harassment policy, which prohibited “expressive, visual or physical conduct of a sexual or gender-motivated nature” that has “the purpose or effect of unreasonably interfering with an individual’s work, educational purpose or status” or “creating an intimidating, hostile or offensive environment.”

The Third Circuit found Temple’s policy facially overbroad because it failed to include any requirement that the allegedly harassing expressive conduct be “severe, pervasive, and objectively offensive” — the exacting standard for peer-on-peer harassment in the educational context established by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Lacking these threshold requirements, the court found the policy “provide[d] no shelter for core protected speech” and left students who wished to discuss “a broad range of social issues” —  for example, the role of women in military combat operations — at risk of punishment if their peers found their viewpoint “offensive.” Under Temple’s policy, the court reasoned, any “gender-motivated” commentary that another student found offensive was potentially grounds for punishment.

DeJohn was a landmark case because it was a clear pronouncement from an appellate court that the First Amendment rights of public college students can’t be subsumed or compromised by a public college’s harassment policy. While public colleges are legally required under Titles VI and IX of the Civil Rights Act of 1964 to prohibit harassment on the basis of gender, race, color, and national origin, they cannot do so in a way that infringes upon students’ right to free speech. Truly harassing conduct, of course, isn’t protected speech. But as the Supreme Court held in Davis, speech only loses protection and becomes actionable harassment in the educational context when it is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. at 633.

That’s a tough standard — and for good reason. It requires the alleged “harassment” to be more than just disagreeable, tasteless, offensive, or nasty speech. In our liberal democracy, no citizen enjoys a “right not to be offended” — and neither do students at public college campuses. However much public colleges might like to grant their students this illusory, illiberal and infantilizing right, they have no authority to circumvent the First Amendment. In 2003, the Department of Education’s Office for Civil Rights, the federal office responsible for enforcing Titles VI and IX on campus, sent an open letter to college and university presidents across the country making clear  that “[n]o OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.”

Case closed, right? Amazingly, no. Over 70% of public colleges across the country continue to maintain unconstitutional speech codes — that is, policies that restrict speech that would be protected off-campus. That percentage is even more staggering when one considers that for over twenty years, federal and state courts have routinely struck down speech codes on constitutional grounds, whether they were sloppily-drafted harassment policies, miniscule free speech zones, or misguided civility policies. Here’s the formidable citation string, chock-full of First Amendment goodness:

Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); DeJohn v. Temple University, 537 F.3d 301, 319 (3d Cir. 2008) (invalidating university sexual harassment policy due to overbreadth); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality); The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring “harassment by personal vilification” policy unconstitutional); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Lopez v. Candaele, No. CV 09-0995-GHK (C.D. Cal. Sept. 16, 2009) (invalidating sexual harassment policy due to overbreadth) (appeal pending); Smith v. Tarrant County College District, No. 4:09-CV-658-Y (N.D. Tex. Mar. 15, 2010) (invalidating “cosponsorship” policy due to overbreadth).

With the law on speech codes so clearly established, you’d think that presidents, general counsels, and mid-level administrators at colleges across the country would be well aware of the substantial legal risk they run by enforcing constitutionally suspect speech codes. (Think of the qualified immunity concerns!) But no; somehow, they aren’t, and speech codes remain on the books at hundreds of colleges. Despite FIRE’s best efforts to put ourselves out of business, we still have a lot of work to do.

But back to McCauley, which picks up where DeJohn left off and reinforces the fact that public college students enjoy First Amendment rights just like the rest of us.

In McCauley, the Third Circuit affirmed the lower court’s finding that the University of the Virgin Islands’ (UVI’s) “Hazing-Harassment” policy was overbroad. The policy prohibited “any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person” — and, applying DeJohn, the district court made quick work of it, finding it facially unconstitutional. But the lower court nevertheless upheld two other flawed policies — prohibiting “Conduct Which Causes Emotional Distress” and “Misbehavior at Sports Events, Concerts, and Social-Cultural Events” — and here, the Third Circuit reversed the lower court and issued a powerful defense of student speech rights in the process.

Citing DeJohn, the court held that UVI’s prohibition of conduct causing “emotional distress” unconstitutional because of its inherent and limitless subjectivity: “Every time a student speaks, she risks causing another student emotional distress.” The Third Circuit observed:

The scenarios in which this prong may be implicated are endless: a religious student organization inviting an atheist to attend a group prayer meeting on campus could prompt him to seek assistance in dealing with the distress of being invited to the event; minority students may feel emotional distress when other students protest against affirmative action; a pro-life student may feel emotional distress when a pro-choice student distributes Planned Parenthood pamphlets on campus; even simple name-calling could be punished. The reason all these scenarios are plausible applications of Paragraph H is that the paragraph is not based on the speech at all. It is based on a listener’s reaction to the speech.

Without an objective requirement along the lines of the Supreme Court’s Davis standard, the Third Circuit held that UVI’s “emotional distress” policy dealt “substantial” damage to free speech on campus and thus could not stand.

The “Misbehavior at Sports Events, Concerts, and Social-Cultural Events” policy — which forbade “offensive” or “unauthorized” signs at said events — was similarly doomed. For one thing, the court reasoned, how to decide what signs are “offensive”? Such a prohibition, the court determined, was “hopelessly ambiguous and subjective.” Also: How does a student receive “authorization” for the display of a sign? The policy didn’t specify any procedure for doing so, let alone the narrow, objective, and definite standards required by licensing schemes that impact speech. As a result, the Third Circuit found that the sign policy could be used to “arbitrarily silence protected speech” and therefore violated the First Amendment.

McCauley‘s animating principle is that a “desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students.” That’s a vitally important message for college presidents, general counsels, and administrators to hear — and, if they’re smart, yet another reason to reform their codes before they’re taken to court.

Thanks very much to Professor Randazza for generously inviting me over to discuss McCauley. It probably won’t surprise anybody when I say that I could ramble on about the decision for a few thousand more words, but I won’t press my luck. Instead, those hardy Satyricon readers that are interested in learning more about the case can check out FIRE’s press release here, my colleague Erica Goldberg’s observations here, or the amicus brief FIRE submitted to the Third Circuit here. Thanks again.

New Rule…

…No American patriotism allowed on Cinco de Mayo.  It might get in the way of Mexicans celebrating their defeat of the French (an unimpressive accomplishment, really, since everyone beats the French).

Interestingly enough, Cinco de Mayo isn’t even celebrated in Mexico.

ANTI SLAPP MONTH: My SLAPP experience

By J. DeVoy

Although SLAPP suits are uncommon events, they influence real-world, extradjudicial interactions between different entities – especially in disputes.  Groups and individuals can leverage tacit threats, insinuations and asymmetries of power to silence their opposition without ever going to the courthouse.  Similarly, just as the broad effects of SLAPP suits have trickled down to apply outside of litigation, so too will the benefits of the Citizen Participation Act, which provide defendants with remedies for lawsuits that seek merely to silence them.

I have been SLAPPed in my own way.  In 2006, a professor circulated letters to the entire faculty and administration of my undergraduate institution, accusing others and me, all editors of a newspaper we created, of being racist, proponents of genocide, and bigoted; he further demanded sanctions against us.  None of this came to pass.  The school’s administration sought our silence by offering an apology from the professor — an apology that never came.  (He did, however, make a vague statement to us that included the phrase “teachable moment” before it was popular.)  I therefore have no compunction about sharing this story, especially in light of this month’s focus on SLAPP issues.

I. Three Friends and I Discover Journalism and the First Amendment.

In April 2004, four mouthy and egotistical friends came together at my undergraduate college to do something bold and new.  I was one of them.  The year had been a frustrating one: We had been lectured ad nauseam by the Dean of Students about our widespread distribution of a list titled 10 Things You Can’t Say on Campus – a brief screed against administrative waste, blatant quotas and bloated sports programs – and encountered difficulties getting our voice heard in the existing student newspaper.  Combining our talents, time and connections, we decided to create our own newspaper.

Armed with $500 from the Leadership Institute and Microsoft Publisher ’98, our paper – we’ll call it The Herald – was born.  Intended to have a libertarian/conservative bent and take-no-prisoners attitude, we considered nothing to be sacred.  We called out the school’s residence life office for confiscating and destroying one editor’s beer pong table.  The student government’s incompetence was ridiculed when its largest event of one school year, a concert, went far over budget; the event was mocked in a satire piece that concluded in the stage’s collapse and demise of the entire featured band.  (Many tears and hurt feelings from the student government ensued; we laughed.)  We tackled other issues, such as campus visits by controversial figures, including Syrian diplomats.

The Herald was a thrilling endeavor, but a taxing one.   The paper grew to proportions the four driving members never truly anticipated.  The Herald‘s alumni include members of the bar, law students, accountants, bankers, political operatives, teachers and other graduate students.  While being good training for meeting deadlines, conducting research and producing good writing under considerable pressure, the paper was an intense grind.  Yet, because of our collective diligence,
 our publication became the most-read – and most controversial – on campus.  Just a few weeks away from its sixth birthday, the publication lives on today.

II.  The High Price of Free Speech.

In early 2006, one professor (say, Professor Pissant, or just “Prof. P”) took umbrage at our content.  Instead of ever identifying these issues to us, or reaching out to any member of the paper, he took matters into his own hands.  Prof. P sent a letter accusing me and other editors of racism and advocating “genocide” to every member of the faculty, distributing physical copies of it into every professor’s individual mailbox.  Prof. P then distributed another letter throughout the administration, to academic deans and the college’s President himself.  In this letter, Prof. P  sought sanctions against me and other editors, including mandatory diversity “sensitivity” training.

On a college campus, the only thing more serious than being accused of racism is being accused of rape.  Rape allegations, however, generally are not made by tenured professors.  Additionally, they are not hand-delivered to the inboxes of every faculty member and do not originate on the desk of the institution’s President.

My fellow managing editor at the time, now a law student at another school, worried about the consequences with me.  In addition to affecting law school admissions, any repercussions would have effects on our character & fitness applications in any state.  We were convinced we had done no wrong.  Fortunately, so was our faculty advisor.

Our paper’s advisor, a former S.D.N.Y. clerk, supporter of free speech and mentor to us all, acted as our surrogate in dealing with the school’s administration.  Without any convincing on his part, the administration concluded that our exercise of First Amendment rights through the paper was not racist or bigoted in any way.  Much damage had been done, though, through Prof. P’s letter to every member of the school’s faculty.  Our class selection for the subsequent 2006-2007 school year, our senior year, was limited by fear of other professors’ prejudice and reprisal based on Prof. P’s accusations.

The college’s administration promised us a meeting with Prof. P, but it was never scheduled.  We heard, but could never confirm, that he refused to meet with us out of fear that those named in his letter would bring a defamation suit against him.  While a defamation claim against Prof. P might have succeeded, it wouldn’t accomplish what we sought: To ensure Prof. P, or any other tenured professor, would never again abuse his or her power over students in the way he had.

III.  Finally, a Remedy?

To this day, it’s shocking that Prof. P, a tenured professor, used his power as he did against students only 20 years old.  While not the same as a SLAPP suit, the basic principles are identical: One party with all the power can hold a hapless defendant hostage for offending its delicate sensibilities, however meritorious and constitutionally protected the defendant’s speech.  More shocking is that this affair occurred within the collegiate context, where free inquiry, debate and rigorous analysis are supposed to be celebrated, rather than silenced through fear and intimidation.

A Federal anti-SLAPP law like the Citizen Participation Act wouldn’t address this particular situation.  But it would provide momentum for groups like the Foundation for Individual Rights in Education to further fight against campus speech codes and other restrictions on student expression.   This law could also embolden victims of such out-of-court misconduct to file harassment claims and expose these abuses of power.  Ideally, the effects of this bill will extend far beyond the pages on which it is printed.

The greatest effect of a Federal anti-SLAPP law, though, would be to remove the perverse incentives that exist for this exploitative censorship in the first place.  Congress’s passage of the Citizen Participation Act would send a clear message that such conduct is unacceptable.  And, while individual free speech would still be protected, the bill would dissuade people from trying to silence opposition in a manner that could blossom into litigation.

While every contributor to The Legal Satyricon is opposed to SLAPP suits, I have a personal interest in seeing the Citizen Participation Act become law.  Beyond writing to congressional representatives, informing everyone with an interest in this bill about how it can affect them is a great way to start.  Hopefully, this bill’s effects will not be limited to the courts.

Another great proposal for thought-policing law students

By J. DeVoy

With one semester left to go in law school, I’d compare my experience in legal education to being a member of a barbaric tribe of hunters and gatherers.  As a group, there are too many of us for existing economic opportunities, even in good times, yet we cannot simply cut out the undesirables.  For those at the top of the grades/prestige hierarchy, an embarrassment of riches — being wined and dined in faraway cities during interviews and the dog-and-pony show known as summer associateship — is ours theirs.  For everyone else there is little, if anything.  Occasionally, one of the undesirables, someone with low prestige or poor grades, is able to move into one of the few apex positions at the top of the tribe and even transcend it.  Through good lawyering, luck, or connections, he performs the modern equivalent of hitting the dominant alpha lawyer in the back of the head with a really big rock and taking the deceased’s harem, children and physical possessions all for himself.

Juxtaposed with this chaos is the highly regimented legal profession and equally stringent requirements for entry.  As zero-sum as the law student’s realm is, where grades and jobs are finite, a forced superstructure of collegiality creates needless pleasantries and orthodoxy among law students.  People censor themselves for fear of retaliation by professors or future colleagues.  As lax as some would contend the bar is, it does keep out people who would tarnish its reputation.  For instance, avowed white supremacists are precluded from entry.  Similarly, those with nearly half a million dollars in educational debt and no means to repay it are also banned.  But now a new barrier to entry is being proposed.

Danielle Citron, a frequent subject of this blog and erstwhile proponent of stamping out speech she thinks is yucky, was recently on a panel that considered whether jeering people online or making “outrageous” race- or gender-specific comments should be subject to stricter scrutiny upon character & fitness review.  Eugene Volokh offers a probing analysis of the issues this proposal raises.  Two points in particular stand out.  First, this would defeat the rigorous inquiry of ideas and facts that legal education encourages, even if it leads people to take positions Citron and others might find “outrageous.”  I’d shudder to think what this nebulous standard might entail, since reality can lead to some very uncomfortable truths about race and gender.  For instance, black children from rich families are outscored on the SAT by poor whites, a trend that has not improved since the test moved to having three scored components.  Surely some find this outrageous, but the data are clear, and solutions to eliminate discrimination — if there is any, another subject for research — cannot be proposed unless someone brings this information to light.  Forcing someone to risk his or her professional career because of the difficulty in confronting this information is unseemly and contrary to the notion of open, rigorous discussion within the university context.  Without deep, probing examination of tough problems, mediocre solutions arise.  The failure of SAT-optional admissions is one example of this principle, as that process has become the backdoor of dumb rich kids into good schools that the most cynical of us always knew it would be.

Second, as Volokh notes, these kinds of panels — not limited to the AALS, but in general — are a great source of pie-in-the-sky psychobabble, but never produce anything tangible.  Citron herself has been bandying about the idea of requiring the disclosure of prior IP addresses to character and fitness examiners for years, yet it is no closer to being a requirement in any single state than it was at its watershed moment in 2007, the filing of Doe v. [a few dozen AutoAdmit posters].  Until a real proposal or model rule is promulgated, it’s easy and even rational to discount these kinds of panels as Lake Wobegon exercises by people who bemoan the plight of the little people before returning to the warm trappings of tenure and a tower of ivory.  It’s simple: Production counts.  Until such a panel creates something that can be implemented by state bars, they will be looked at with a jaundiced eye.  Meanwhile, people who follow such matters will wonder why the AALS isn’t devoting its resources to wresting sole law school accreditation authority away from the obviously incompetent ABA and shutting down some schools, especially the dubious for-profit ones.

Finally, I feel that it looks I’ve been too harsh on Danielle Citron.  Despite not blogging for long, I have dedicated a substantial amount of writing to her and her proposals.  Though disagreeing with many of these positions, I have respect for professor Citron and especially her prolific publishing.  As of this writing, I’ve requested to be her friend on facebook.  Hopefully she’ll accept.