On Wednesday, Judge George A. King of the United States District Court for the Central District of California again rejected the Los Angeles Community College District’s arguments in favor of its speech code in Lopez v. Candaele, et al. The order denied the District’s motion asking the court to reconsider its previous ruling issuing a preliminary injunction against the District’s sexual harassment policies.

In his order, Judge King rejects every argument the District makes, devoting an entire section of the opinion to address what he calls the District’s “scattershot” and “disjointed” arguments with regard to the applicability of DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008):

Finally, Defendants criticize DeJohn as a singular case and not well reasoned. (Motion 14). We think that DeJohn is well reasoned. Moreover, Defendants are unable to cite any case where a similar policy survived a constitutional challenge in a college setting so that it might arguably be said to conflict with DeJohn. To the contrary, the Third Circuit has rejected a substantially similar policy even in an elementary and high school setting. Saxe v. State College Area Sch. Dist., 240 F.3d 200, 216–17 (3d Cir. 2001). Thus, Defendants’ scattershot and disjointed arguments do not defeat the reasoning of DeJohn.

Astute observers will recall that DeJohn (which was litigated by ADF) is the leading case on speech codes and sexual harassment policies in the college setting. Yet the District argued that this opinion, which was applauded by free speech advocates like FIRE and Eugene Volokh, was “poorly reasoned.” The basis for this argument? Not conflicting case law from the Ninth Circuit—as a matter of fact, there is no conflicting case law whatsoever. (As Judge King pointed out, “Defendants are unable to cite any case where a similar policy survived a constitutional challenge in a college setting so that it might arguably be said to conflict with DeJohn.”)

Nay, friends—the support for this argument came from the pen of a law student in a shockingly poorly written comment in the Harvard Law Review. Aside from the fact that the opinion of a law student carries infinitely less weight than a well-reasoned opinion from three federal appellate judges (at least on this planet), the comment manages to criticize DeJohn without citing any of the many cases striking down speech codes on college campuses across the country. Coming from such a respected publication, such shoddy scholarship obviously created quite a bit of controversy.

The comment itself has already been discredited by the legal community, and it was ripped to virtual shreds by Kelly Sarabyn of FIRE and our own David French. Now, with this latest opinion in Lopez, a federal judge has weighed in as well. Public universities may not like it, but DeJohn is here to stay. The District appealed the court’s ruling on the preliminary injunction to the Ninth Circuit, so if they continue to pursue the appeal in light of Judge King’s latest rejection of their position, we may get a chance to hear what the Ninth Circuit has to say about DeJohn. But given the force of case law behind the opinion and the strength of its reasoning, it’s hard to believe they will differ.

Peter Wood postulates an amusing, though far-fetched view of higher education in the year 2030 in this National Association of Scholars piece. My question is what becomes of the ability of students to advocate their views in the marketplace of ideas? Wood finds that future universities will be online exclusively and that the physical campuses of old will be turned into “entertainment complexes catering to America’s main international industry, casino gambling,”  “assisted living facilities for the elderly,” or “youth detention centers and low-security prisons.” 

I suppose if Wood’s theory proves true, college students of the future will use the Internet for communicating their ideas, much like they do today.  Though, I wonder if the private corporations that operate Facebook, Twitter, and the like will continue to allow such open discussion.  And do we want to place such decisions in their hands?  Regardless of their good intentions to keep the Internet open and free, the Constitution does not restrain these private entities like it does public institutions.  (Although, many public colleges and universities today don’t comply with the First Amendment as required to, so maybe there’s little to lose.)  Nevertheless, even if students of the future are not speaking on physical college campuses, perhaps, as Wood suggests, they will be speaking in their home towns and become agents of change in the real world. 

Who knows what the next 20 years in higher education will look like.  I doubt the traditional college will fade away so quickly–after all it has existed for centuries.  But as we look forward we must ask, “are we increasing the ability of students to speak equally?”  I hope that in 20 years, the answer is, yes.

Ordered liberty is the answer to today’s leftist academy and morally depraved student population–that is the solution proposed by David French in this article. French argues that leftist attempts to create a utopian campus culture have backfired in the worst way, with students embracing morally debased actions over moral virtue. For example, feminists’ attempt to indoctrinate students with their vision of an ideal male (“less aggressive, more emotional, and subservient to women”), has backfired and caused many college males to embrace the worst aspects of their sinful nature–binge drinking, sexual promiscuity, and unrestrained, testosterone-induced deviousness.  French writes: 

Millions of college students have answered political correctness with hedonism, defying feminist and multiculturalist scolds with hoisted beer glasses and libraries full of Girls Gone Wild DVDs.  If this is the current state of student rebellion (and it is), then it’s terrible news for our culture and a disaster for conservatism.  It is the rejection of one form of vice (leftist thought control) for other, equally destructive vices that will have enduring, negative effects on our civil society. 

Exactly.  The hypocrisy of the campus left is that while speech codes and nondiscrimination policies are vigorously enforced against Christian student organizations, college administrators turn a blind eye to the campus party circuit.  As a college freshman over a decade ago, my dorm was known for its weekly “malt liquor Thursdays,” the purpose of which was to see how many 40s one could consume in a night.  And this wasn’t a college ranked on Princeton Review’s party school list, this was one of America’s elite universities.  While our residential assistants conducted the school’s mandatory diversity training sessions by day, by night they were part of the Dionysian festival on the third floor. 

The sad truth is that the campus left is so concerned with tolerance and diversity training that it does not realize it is stoking the fires of a morally depraved student culture.  Administrators shriek in horror when a Catholic student group receives student activity fees to fund its activities, some of which might include prayer and worship.  But the same administrators wholeheartedly embrace the funding of student groups whose sole purpose is to teach fellow students who to have more premarital sex. 

There was a slogan painted in the atrium of my public high school:  Freedom with Responsibility.  As French writes, it is time for Christian and conservative students to not only challenge the speech-restrictive culture on campus, but also to advocate for ordered liberty on campus among their fellow students.  Otherwise, they may be able to speak, but their peers won’t be listening.

At The Chronicle Review, Mark Lilla writes about the University of California at Berkeley’s new Center for the Comparative Study of Right-Wing Movements. Admittedly, studying conservatism at Berkeley seems to rank among the ultimate oxymorons. And seeing as it is housed in the Institute for the Study of Social Change (which is dedicated to placing “issues of race, gender, and class at the center of the agenda”), the Center appears to study conservatives the same way medical researchers study lab rats, as curious but vastly inferior creatures.  Even the Center’s name has a pejorative ring, lumping American conservatives in with every other global “right-wing” movement, which even Dr. Lilla notes is unfair and inaccurate. 

Whatever the Center’s merits may be, Dr. Lilla’s article highlights the overwhelmingly and pervasively leftist environment that is modern academia.  Recent studies show that leftists outnumber conservatives by at least eight to one in most departments, and Dr. Lilla confirms this “embarassingly accurate” picture, noting that it is “foolish to deny what we all see before us”:

Over the past decade, our universities have made serious efforts to increase racial and ethnic diversity on the campus. . . .  Well-paid deans work exclusively on the problem.  But universities show not the slightest interest in intellectual diversity among faculty members.  That wouldn’t matter if teachers could be counted on to introduce students to their adversaries’ books and views, but we know how rarely that happens.  That’s why political diversity on the faculty does matter.  As it stands, there is a far greater proportion of conservatives in the student body of typical colleges than on the faculty.  A few leading thinkers on the right do teach at our top universities–but at some, like Columbia University, where I teach, not a single prominent conservative is to be found.

And he underscores this picture with some personal vignettes, showing how most academics view conservatism and conservatives as topics unfit for polite conversation.

Dr. Lilla continues by noting that “the blackballing of conservatives and conservative ideas is by now instinctive and habitual rather than self-conscious, reflecting intellectual provincialism more than ideological fervor.”  As bad as intentional discrimination is, this subconscious discrimination is even worse because it means that ideological litmus tests for professors seeking employment, tenure, and promotion are so widespread, so well-entrenched, and so universally accepted that universities do not even recognize that a problem might exist.  Indeed, as an “ex-conservative,” Dr. Lilla observes that even he was “lucky” to have landed an academic position and received tenure.

But after diagnosing the ills of modern academia, Dr. Lilla stumbles a bit when prescribing a cure.  At first, he takes pot shots at people like David Horowitz, who merely highlight the same systemic disease that he does.  Later he endorses special courses in conservative thought, where students read selections from some of the greatest conservative authors in recent history and debate their ideas.  While he cannot resist caricaturizing conservatives as uncivil acolytes of the Horowitz bogeyman who spout nothing but cliched Fox News talking points, he ends up endorsing a novel vision for universities–the marketplace of ideas, where a wide variety of perspectives are debated vigorously and freely.  Indeed, this almost sounds like the Supreme Court’s Keyishian decision, which said:  “This Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”

But Dr. Lilla largely overlooks the obvious and long-term solution to the ideological imbalance on campus:  treat conservative and Christian scholars just like everyone else.  He tries to resolve a personnel-based, personnel-created problem with a program-based solution.  Yet this approach ignores his previous admission that “political diversity on the faculty does matter.”  If universities are to have this unfettered, uninhibited exchange of ideas on campus, they will have to hire, tenure, and promote conservative scholars without regard to their political, ideological, or religious beliefs.   As Keyishian noted, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”  Nor does it tolerate university litmus tests–whether acknowledged or not–that produce and perpetuate the gross ideological imbalance in what is supposed to be the marketplace of ideas.

FIRE reports that a professor at East Georgia College was fired after he noted that the college’s sexual harassment policy provides no protection for the falsely accused. If true, EGC could be staring at a First Amendment retaliation lawsuit that will raise interesting questions about the scope of the Supreme Court’s holding in Garcetti v. Ceballos as applied to college faculty.  There, the Court held that public employees do not have a right to free speech when acting pursuant to their official duties.  However, the Court specifically stated that educators are exempt from this standard.  Nevertheless, some colleges have already argued that Garcetti gives them absolute authority over what their faculty say on and off campus.  I’m glad FIRE’s involved and hope that EGC sees the error of its ways.