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.

In the latest installment of a sad trend, another Catholic university has shortchanged its Catholic principles and heritage. In 2006, Georgetown University kicked a host of ministries off campus. This year, it concealed references to Christ to appease the White House. And of course, Notre Dame hosted a commencement speaker who completely rejects the Catholic Church’s stance on the sanctity of life, thereby minimizing the issue’s importance.  Now St. Louis University, a Jesuit school, joins this “elite” club.

Recently, St. Louis University blocked Young Republicans and Young America’s Foundation from bringing David Horowitz to campus to lecture on “Islamo-Fascism Awareness and Civil Rights.”  Apparently, the University feared that the event “could be viewed as attacking another faith and seeking to cause derision on campus.”  This ludicrous decision even prompted groups like the AAUP and College Freedom to defend Horowitz, something that itself is nigh unto miraculous.

Not only does the University overlook the heinous crimes committed in the name of Islamo-Fascism, but it also ignores its own religious heritage.  At this university founded by the Society of Jesus, would Jesus be allowed to declare:  “I am the way, the truth, and the life.  No one comes to the Father except through Me”?  After all, He implicitly “attacks” every other faith in the world with this statement.  Would Peter (the first pope in the Catholic tradition) be allowed to proclaim of Christ:  “Nor is there salvation in any other, for there is no other name under heaven given among men by which we must be saved”?  Or would these words, uttered during a confrontation with Jewish civil and religious leaders, be construed as attacking another faith and causing derision?

Like Georgetown and Notre Dame, the University responded to criticisms by invoking its “Catholic, Jesuit mission and values.”  But in light of its actions, one must wonder whether this is just a sanctimonious way of maintaining a religious facade while acting just like a secular university.

Eugene Volokh recently commented on the latest ruling in Lopez v. Candaele, relating it to his prior criticisms of hostile environment harassment in the employment context. In doing so, he further undercuts the primary response universities raise when students challenge the speech codes all too often embedded in these harassment policies.

Like most employers, universities often prohibit students from doing or saying anything that might create a hostile, offensive, or intimidating environment.  Frequently, they do this as part of their sexual harassment policies, policies that apply to both employees and students.  And thus, they create a nebulous speech code for students on campus where no one really knows what they can or cannot say because everything depends on the reaction of the listener.

When students raise First Amendment objections to these speech codes, universities frequently insist that a ruling in favor of students’ free speech rights will upset the entire landscape of employment law and that the EEOC sexual harassment language is somehow invincible to constitutional attack.  This is why it seems that universities often just visit the EEOC website and hit “download” when drafting harassment policies.  In their minds, the EEOC language is the gospel of all harassment policies—no matter who those policies cover.  Indeed, Los Angeles City College made this argument in its recent motion and continues to do so. 

Yet this argument has failed every time it has been tested.  (In addition to DeJohn and Lopez, the Community Colleges of Spokane also recently changed similar harassment policies in response to another First Amendment challenge from the ADF Center for Academic Freedom.)  Why is this?  Well, while Professor Volokh may be right that hostile environment harassment has flaws even in the employment context, those flaws are magnified when dealing with college students’ speech.  Employers, obviously, have a great deal of control over what their employees do during work hours.  But college students are not university employees.  And as the Supreme Court noted in its 1972 Healy decision, the First Amendment applies on college campuses with the same force as in the community at large.  In fact, as Judge King noted in his preliminary injunction ruling, similar harassment policies are unconstitutional even in high schools, where students have fewer First Amendment rights than college students.  In other words, when analyzing how universities can treat their students, the proper analogy is the relationship between the government and its citizens, not employers and their employees.  The government cannot prohibit citizens from saying things that some might perceive as offensive, intimidating, or demeaning, and neither can universities do so for their students.  Thus, students should feel as free to speak their minds on campus—regardless of whether their opinions are controversial, unpopular, or administration-approved—as they do anywhere else in the community.  And universities must heed Justice Souter’s reminder as he spoke for the unanimous Hurley Court in 1995:  “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.”

On Monday, Heather reported on a federal district court’s recent ruling in Lopez v. Candaele, et al. upholding a preliminary injunction against the Los Angeles Community College District’s speech code. The speech code is nearly identical to one struck down by the United States Court of Appeals for the Third Circuit in DeJohn v. Temple University.  The Student Press Law Center interviewed me about the decision along with Kevin Jeter, Esq. (in-house counsel for the District). Here’s what SPLC reports Mr. Jeter said:

Kevin Jeter, in-house counsel for the LACCD, said the district is pursuing the case because the wording in its speech code was based on California law. The debate is about the constitutionality of the speech code suggested by the state legislature, he said.

“It has to do with whether or not the district was right in following the law,” Jeter said. “The question is; ‘can you be sued for doing what the law tells you to do?’ I think the fundamental answer is no … even if the law is wrong.”

But California law does not require the District to use a particular definition of harassment in community college speech codes. In fact, immediately after the preliminary injunction hearing, the District filed papers with the Court notifying it of a “new” harassment policy that had allegedly been in place for a year. This policy does not use the harassment language purportedly required by California law.

Yesterday, the District filed a notice with the United States Court of Appeals for the Ninth Circuit, indicating that it intends to pursue an appeal of the preliminary injunction ruling–and defend policy language it believes is mandatory under California law, but which its allegedly “new” policy does not contain.

I’ve written before on our old blog about the Campus Pro-Life student group at the University of Calgary because the situation is so outrageous and American universities often mimic free speech denials that have occurred at Canadian universities. Lifenews.com reports that even though the Campus Pro-Life students will go on trial in November for criminal trespass, and even though the student union denied them official recognition, they are persevering and continuing to speak on campus:

The members of the Campus Pro-Life group at the University of Calgary aren’t letting a little thing like charges of criminally trespassing on their own campus stop them from speaking out against abortion. They are putting together a new pro-life display despite an expected court appearance in weeks.

Six University of Calgary students pleaded not guilty in March to the bogus trespassing charges.

They were arrested in February and charged after they set up a pro-life display college officials initially allowed but said they didn’t want shown.

When UC officials warned members of Campus Pro-Life that they had to restrict their own pro-life display, the students refused to comply.

Now, the pro-life students are back with their graphic display on campus even though university officials have infringed on their free speech rights and told them to take them down. They have also threatened the students with non-academic misconduct procedures.

“We are innocent until proven guilty, so we have every right to be here,” the pro-life group’s president, biology student Leah Hallman, told the Calgary Herald. “If we didn’t do this, we would be consenting that we are doing something wrong, and then who would be here to speak for the unborn?”

The trial is set for November 4 and, until then, the University of Calgary has said the students can’t set up the abortion display, but officials will not forcibly remove it.

“The university reiterates that it will not seek to physically remove the group or its signs,” a statement it released says. “This action would elevate the risk of confrontation and give the organization the publicity it is seeking. The university is working to have this issue resolved in an appropriate manner.”

The University wants this free speech black eye to go away quietly and is resolving it in an “appropriate manner”–through criminal trespass charges.  But no student should be subject to criminal sanction for engaging in free speech on campus, and I applaud the group for continuing to speak despite all they have endured.