Charlotte Allen has posted a thoughtful essay about the aftermath of the Supreme Court’s unfortunate June decision in Christian Legal Society v. Martinez (“More Wreckage from Ginsburg’s ‘Neutral’ Ruling,” September 7, 2010). Very much worth a read.
It’s official now. You can rejoice if you are a student attending a public college or university in Pennsylvania, New Jersey, Delaware or the Virgin Islands. (You are probably already rejoicing if you are a student in the Virgin Islands for other obvious reasons.) Give your friends a high five, chest bump, fist pound, jumping hip-bump or whatever form of celebratory expression you choose. Why? Because you have the freedom to speak your mind on campus.
Last week, the U.S. Court of Appeals for the Third Circuit issued a resounding decision in favor of free speech by invalidating several unconstitutional speech codes. In McCauley v. University of the Virgin Islands, the Court struck down campus policies banning expression that is “offensive,” “unauthorized,” or which causes “emotional distress.” The Court reasoned that such prohibitions were so “hopelessly ambiguous and subjective” that they could be used by university officials to arbitrarily silence protected speech, a danger the First Amendment does not permit. The decision reaffirms what the Supreme Court has been saying for decades: state officials cannot prohibit expression simply because it angers or offends someone. Period. And this is especially true on campus—the proverbial “marketplace of ideas.” Having now stricken three school speech codes this decade, the Court of Appeals has sent a clear message that students’ First Amendment rights are alive and well in the Third Circuit.
So what’s the big deal? All students have free speech rights. Right? While true in theory, some recent court decisions threaten to dilute the traditionally vigorous protection for campus expression. Take for example the recent ruling against Julea Ward. The district court there upheld Eastern Michigan University’s speech code that banned “condon[ing] … discrimination” and “fail[ing] to tolerate different points of view” even though these policies applied to negative thoughts and remaining silent in response to a discriminatory idea. It is difficult to conceive of a more unconstitutional set of regulations, but the district court found them to be permissible provisions of the school’s “curriculum” and the counseling profession’s “code of ethics.” So now, Michigan state officials can silence student speech simply by cloaking speech codes as curricular or ethics policies. ADF is appealing this troubling ruling, but until it is overturned, student speech in the Great Lake State has been dealt a serious blow.
Decisions like Ward not only remind us that the price of freedom is eternal vigilance, but they help us cherish rulings like McCauley that actually recognize and vindicate our most fundamental liberties. So go ahead and celebrate your freedom! We’ll keep fighting to protect it.
Susan Herbst posits in Inside Higher Education that colleges can do a better job of managing student incivility through education about civil discourse and the creation of new civility policies. Her premise is sound. Colleges can encourage civility in more effective and less constitutionally intrusive ways. However, her proposed methods for change are fundamentally flawed.
One of the problems is that she starts off on the wrong foot: “We have moved away from ‘hate speech’ codes because they are difficult to get right; they do have a tendency to trample on forms of free speech that really aren’t dangerous at all.” Speech codes and so-called “hate” speech policies do trample free speech, but about 70% of public colleges and university still have one (or more) on the books. I don’t know who has “moved away” from them, but most colleges have not.
The problems continue. Herbst argues that colleges should start using civility codes instead of “hate” speech policies and should teach students that civil discourse is more effective. As an example, she points towards Penn State’s ”Principles” for students. But Penn State’s Principles read like a speech code:
Actions motivated by hate, prejudice, or intolerance violate this principle. I will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including intimidation, stalking, harassment, discrimination, taunting, ridiculing, insulting, or acts of violence. I will demonstrate respect for others by striving to learn from differences between people, ideas, and opinions and by avoiding behaviors that inhibit the ability of other community members to feel safe or welcome as they pursue their academic goals.
Colleges must be careful in creating these aspirational policies. Penn State created these aspirations only after A.J. Flueher sued over its former speech code, which stated “acts of intolerance will not be tolerated.” Needless to say, he won. Penn State claims the Principles are not a policy, but an administrator could easily accuse a student of violating these principles and then charge the student with a violation of another part of the student handbook (e.g., harassment is prohibited in both the Principles and the student code of conduct).
Civility codes are not constitutional. San Francisco State University required students to “be civil” on campus. A student used that policy to file a complaint about the College Republicansand force a university investigation. SFSU eventually revised the policy, but only after a federal court struck down the policy as facially overbroad. The problem with civility codes is that they have a chilling effect on student speech and can be applied in a discriminatory manner–allowing some to speak, but not others. Herbst should be familiar with this problem, as her employer was suedby two students who were silenced under Georgia Tech’s “acts of intolerance” policy. (They also won in court.)
Colleges can do a better job of encouraging students to engage in civil discourse. But civility codes are not the answer.
Earlier today we received confirmation from the University of Illinois that it is reinstating Dr. Kenneth Howell as an adjuct professor this fall. The University terminated Dr. Howell’s employment earlier this summer after a student complained that he was “offended” by Dr. Howell’s academic discussion of the Catholic Church’s position on homosexual behavior in an Introduction to Catholicism course. The student was not even enrolled in the class.
In a letter to ADF, the Universitystates that Dr. Howell will be asked to teach Introduction to Catholicism this fall. This is a tremendous win for Dr. Howell’s academic freedom and First Amendment rights. However, ADF will continue to monitor the situation.
The University’s letter warns that Dr. Howell may not “violate the Constitutional principles precluding the ‘establishment of religion’ in a public university context.” It seems the University has not yet learned its lesson. No one alleged that Dr. Howell violated that principle or ever intended to. Yet the University’s warning invites viewpoint discrimination and further violations of academic freedom. The University must respect the right of faculty to speak freely in the classroom. Further, the University’s Faculty Senate Committee on Academic Freedom and Tenure intends to review the University’s actions to determine if it violated Dr. Howell’s academic freedom. We are confident the Committee will find in favor of Dr. Howell.
Dr. Howell’s reinstatement is also a resounding victory for the thousands of University students who rallied to Dr. Howell’s support through social media.
This week the ADF Center for Academic Freedom settled Professor June Sheldon’s lawsuit against the San Jose/Evergreen Community College District, a college that has been fraught with corruption charges lately. Professor Sheldon sued the District two years ago after it terminated her employment because an anonymous student complained that she was offended by how Sheldon answered a student’s question in class. In exchange for dropping the lawsuit, the District paid Ms. Sheldon $100,000 and expunged her personnel file from all charges of wrongdoing.
Professor Sheldon has taught college-level science courses for over 20 years. In 2007, she taught human heredity at San Jose City College. During one particular class, a student asked her how heredity affects homosexual behavior. Professor Sheldon answered the student by discussing briefly both positions on the topic—as discussed in the course textbook—and mentioned the research of a well-known German scientist referred to in a website provided in the textbook. A month later the District received an anonymous, informal complaint, which it claimed a student submitted. The complaint stated that Sheldon’s answer to the student’s question about homosexual behavior was “offensive.” The District then launched an “investigation” and found that Sheldon’s statements were “offensive and unscientific.” The District’s board of trustees fired her in February 2008 because of what she said in the classroom.
ADF filed suit on behalf of Professor Sheldon in July 2008. The District asked the federal district court to dismiss the lawsuit, citing the Supreme Court’s decision in Ceballos v. Garcetti for the proposition that public employees, including faculty at public colleges, have no right to free speech when performing their job duties, including teaching. (My colleagues and I have written at length about the perils of the Garcetti decision here, here and here.)
While District argued that Professor Sheldon’s in-class speech was not protected by the First Amendment and that the District has the right to regulate it, even after the fact, the District’s academic freedom policy allegedly protected the faculty’s right to free expression in the classroom:
The common good depends on the free search for truth and its free expression; to this end, faculty and students hold the right of full freedom of inquiry and expression. Academic freedom is essential to these purposes and applies to both teaching and research. Freedom is fundamental to the protection of the rights of the teacher in teaching and of the student in learning…. The instructor has the right to study and investigate, interpret his/her findings and express resulting conclusions to students…. Because human knowledge is limited and changeable, the instructor may present views which are controversial and evaluate opinions held by others while simultaneously respecting and valuing their right of their free expression.
So while the District promised freedom, it still wanted the right to censor and punish faculty for speech it disliked. This is a dangerous position that all faculty should be concerned about, lest they fall into the same trap as Professor Sheldon.
The court rejected the District’s Garcetti arguments, refused to dismiss the case, and held that “a teacher’s instructional speech is protected by the First Amendment.” This is one of a handful of rulings nationwide that addresses Garcetti in the classroom and will provide protection to many faculty in the future.
Professor Sheldon stood courageously to protect her First Amendment rights in the college classroom. The settlement pays her $100,000 and exonerates her teaching record. But the District’s unwillingness to embrace its proclamations of academic freedom is yet another example of the underlying hostility to free speech in the Academy. Professor Sheldon is not the only professor to have been discriminated against for her speech, but the legal precedent she established and the settlement will no doubt cause administrators to think twice when they try to shut down the “marketplace of ideas” in the future.