Last week, District Judge Edward F. Shea issued an agreed order representing the settlement agreement in the case Sheeran v. Shea (no relation to the judge), et al. We commend the Community Colleges of Spokane (CCS) for their willingness to work out a settlement with Ms. Sheeran that brings their policies into compliance with the Constitution.
The order requires CCS to change the unconstitutional policies at issue in the case, as well as pay damages and attorneys’ fees. We view this as a huge victory for free speech on campus, since the CCS policies were some of the worst we’ve seen.
Aside from policies requiring prior approval (without standards) by administrators before students could do things like distribute literature or host an outside speaker, CCS policies actually allowed administrators to require students hosting an outside speaker to present opposing points of view! In fact, that was an administrator’s initial response to Beth Sheeran’s request to hold her pro-life event—it was “too one-sided” and since “Washington is a pro-choice state,” they would also have to include pro-choice information. IN A PRO LIFE EVENT.
If that wasn’t bad enough, CCS also had a couple of unconstitutional harassment policies, along with a program called “Stop The Hate”. Before we filed this lawsuit, students were encouraged to report on one another when they observed an “incident” of “bias”:
A bias incident, or hate incident, is an act of conduct, speech or expression to which a bias motive (relating to race, religion, disability status, ethnicity/national origin, gender or sexual orientation) is evident as a contributing factor regardless of whether the act is criminal.
Students also faced punishment for “offending” someone or creating a “hostile” or “offensive” environment, as subjectively determined by the observer. That is exactly what happened to our client, Beth Sheeran, and the other students. Their faculty advisor, in the presence of other administrators, told the students that their event violated “Stop The Hate” and state law, and if they offended anyone, they could face disciplinary action. She then asked, “You don’t want to be expelled, do you?”
Occasionally, I’ve talked with people who can’t believe that a college would actually try to enforce a speech code against so-called “offensive” speech. But the Sheeran case is a prime example of exactly what happens when colleges and universities curtail speech with overbroad, subjective policies. Even if the policy has what sounds like a noble goal (who likes “hate,” after all?), if the policy is worded in such a way that it can be applied to constitutionally protected expression on a subjective basis, two things will happen. One, students will read such policies and self-censor their speech, being careful not to “offend” others as a way to avoid potential punishment. Two, administrators will use the policies to curtail speech they don’t agree with. That is the problem with speech codes. They turn the college campus into a place full of people gingerly tiptoeing around each other, washed in shades of gray, instead of the challenging, teeming, vibrant marketplace of ideas it is supposed to be.
The Sheeran settlement was a great outcome not just for pro-life students, but for every student at the Community Colleges of Spokane. They all have more freedom to express their views and make their campus a true marketplace of ideas because of the bravery of one student who was willing to stand up and call her school out on their illegal policies.
The victory does not come free from a sense of foreboding, however. These “Stop The Hate”-type programs seem to have become vogue among administrator-types, and are cropping up at increasing numbers of schools. For example, FIRE recently convinced Cal Poly not to adopt a similar program, and after the ACLU of Nevada wrote a demand letter to UNLV about their policy, the chancellor decided to have it rewritten. These types of programs raise serious constitutional issues. And given their growing prevalence, something tells me the Sheeran case won’t be the last one to challenge them.