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A Blow to Student Liberty on Constitution Day

Posted on September 20th, 2010 Freedom of Speech | 7 Comments »

In a disappointing setback for college student free speech, the U.S. Court of Appeals for the Ninth Circuit ruled late Friday that Jonathan Lopez does not have standing to challenge the Los Angeles Community College District’s speech code on its face (ADF represents Mr. Lopez).

Readers may recall that Mr. Lopez was punished for giving a speech about his religion in a Los Angeles City College public speaking class in November 2008.  After reading the dictionary definition of marriage as being between a man and a woman, the professor called him a “fascist bastard,” refused to let him finish his speech, and wrote on his evaluation form, “Ask God what your grade is,” and “proselytizing is not allowed in public schools.”  During a subsequent class assignment to present a persuasive speech, Mr. Lopez proposed that he discuss the important of standing up for what you believe.  The professor wrote on Lopez’s paper:  “Remember – you agreed to student code of conduct at LACC.”  The student code requires students to comply with all College policies, including the sexual harassment policy, which punishes any speech deemed subjectively “offensive.”  The harassment policy even told students to self-censor their speech if they thought it might offend someone.

Despite the fact that Lopez must comply with the harassment policy at all times on campus, the Ninth Circuit ruled that he did not have legal standing to pursue his challenge to the facial overbreadth of the policy.  The Ninth Circuit’s ruling creates a circuit split with the Third Circuit, which ruled in McCauley v. University of the Virgin Islands (August 2010) that a college student could challenge the facial validity of his university’s speech code even though the code was never applied to silence his speech and even though the student admitted he did not want to engage in the speech restricted by code.

Notably, the Ninth Circuit went out of its way to point out the danger of the College’s speech code:

Formal and informal enforcement of policies that regulate speech on college campuses raises issues of profound concern. . . . Such policies, well intentioned though they may be, carry significant risks of suppressing speech.  Because some people take umbrage at a great many ideas, very soon no one would be able to say much of anything at all, an outcome that would be anathema for universities, our nation’s “marketplace of ideas.” Rather, the First Amendment protects a speaker’s “freedom to express himself on . . . issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.

(Opinion at 26) (citations omitted).

The Ninth Circuit’s ruling leaves a glaring inconsistency in the law and provides college students in the West with little comfort that they can challenge college policies that chill their speech.  Mr. Lopez’s fight is not over.


ADF Senior Legal Counsel - University Project

Minding the Campus: The Bitter Fruit of CLS v. Martinez

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.


ADF Senior Counsel - University Project

Third Circuit Vindicates Free Speech (Again)

Posted on August 25th, 2010 Freedom of Speech | 2 Comments »

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.


ADF Litigation Staff Counsel - University Project

Missing the Point About Speech Codes

Posted on August 6th, 2010 Freedom of Speech | No Comments »

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.


ADF Senior Legal Counsel - University Project

University of Illinois Reinstates Dr. Kenneth Howell

Posted on July 29th, 2010 Freedom of Speech | 11 Comments »

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.


ADF Senior Legal Counsel - University Project

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