Recently, our friends at FIRE celebrated a huge victory (along with legal network attorneys Robert Corn-Revere and Cary Wiggins) in obtaining a jury verdict holding Valdosta State University President Ronald M. Zaccari personally liable for violating student Hayden Barnes’ constitutional rights and awarding him $50,000 in damages.

The saga began back in 2007, when Barnes spoke out against Zaccari’s plans to build two new parking garages on campus at a cost of 30 million dollars, partially funded by student fees.  Barnes voiced his opinion and proposed what he viewed as more environmentally friendly alternatives by posting flyers, sending emails to Zaccari, student and faculty governing bodies, and the Board of Regents of the University System of Georgia, as well as writing a letter to the editor of the VSU student newspaper.  Barnes also wrote to Zaccari to ask for an exemption from the mandatory student fee designated for funding the construction.

Zaccari responded by expelling Barnes from school, without notice or opportunity to be heard, for supposedly being a “clear and present danger” to the school.  The jury found that Zaccari violated Barnes’ rights by doing this and held him personally responsible for it to the tune of $50,000 in damages, payable to Barnes.

While college administrators violating student rights is certainly nothing new, often administrators have been able to avoid personal responsibility for doing so.  But this case represents a warning:  College administrators should no longer assume they can violate student rights with impunity.  Not only can they be held liable in their official capacities as university administrators, they can also be held personally liable for damages.  As more and more legal precedent is built, administrators will have less and less of an excuse for violating clearly established student rights like freedom of speech, freedom of religion, due process, and equal protection under the law, and for retaliating against students for exercising those rights, like Hayden Barnes did.  Congratulations to FIRE for a significant victory for the rights of students everywhere!

Last October, Angela McCaskill, chief diversity officer at Gallaudet University, the nation’s premier university for the deaf, was placed on administrative leave for signing a Maryland petition to protect marriage.  We wrote to Gallaudet and expressed our serious concern about the many laws the university broke by punishing an employee for clearly protected speech.  After three months on leave, and with her employment uncertain, Gallaudet announced this week that McCaskill is back on the job.

The university correctly reinstated McCaskill, but we are troubled that the university let this drag on so long.  Several years ago, San Francisco State University conducted a seven-month investigation of several college students for sponsoring a speech event on campus.  The university eventually dropped the investigation, but it had already chilled the students’ free speech.  A federal court later enjoined the policy that allowed the university to investigate dubious charges.  No doubt, Gallaudet has accomplished the same result by suspending McCaskill for three months after she engaged in a constitutionally protected activity.  If Gallaudet had been a public university, McCaskill would have a strong First Amendment retaliation claim.  But even though it’s not, Gallaudet was close to breaking several federal and state laws.  We hope McCaskill won’t be dissuaded from expressing her personal beliefs in the future, and we caution that public universities should not follow Gallaudet’s speech-chilling example.

Santa came early this year for students at some public universities.  FIRE released its annual survey of free speech on campus this week and reports that for the fifth year in a row, unconstitutional policies at public universities have diminished in number.  According to the report, five years ago 79% of public college maintained clearly unconstitutional speech policies.  For 2013, that number has dropped to 61%.  This is a tremendous decline in only five years and shows that efforts by FIRE, Alliance Defending Freedom, and allied organizations are have a huge impact (Alliance Defending Freedom launched its team of university lawyers in 2006).

But the Grinch remains a strong foe of student speech, with three-fifths of universities still stifling student speech.  For example, one hundred percent of schools in Illinois and Wisconsin received a “red light” rating, which indicates the school has a student policy that violates the Constitution.  Over the past 6 years, Alliance Defending Freedom has filed multiple lawsuits in Wisconsin alone.  By contrast, in Virginia, 37% of universities received a green light rating.  (Alliance Defending Freedom scored a victory earlier this year when Virginia Tech agreed to remove an unconstitutional student fee policy.)

FIRE’s report shows that advocates of religious liberty and free speech are making headway at public universities.  But there is much more work to be done across the country and Alliance Defending Freedom cannot do anything without students who are willing to speak up for their rights.  We hope you will speak up with us in 2013.

At Christmas, one would hope that the only controversy surrounding the Salvation Army and their iconic bell ringers would be their fictional dispute with Homelessville and Justin Timberlake.  But for a student body obsessed with political correctness at any cost, the mere presence of the bell ringers near campus doing their traditional collection of funds for the needy is intolerable if they are doing so in the name of a Christian organization.

As our friends at CampusReform.org reported, the student government at the University of California, Berkeley recently passed a resolution attempting to ban the bell ringers from campus.  Regardless of the fact that the Salvation Army helps millions of Americans every year, providing disaster relief, shelter, food, job training, community programs, drug and alcohol rehabilitation, youth camps, and many other programs, the Berkeley students sought to force administrators to revoke the bell ringers’ permits:

“Salvation Army church services, including charity services, are available only to people ‘who accept and abide by the Salvation Army’s doctrine and discipline,’ which excludes homosexuality . . . . Allowing the Salvation Army to collect donations on campus is a form of financial assistance that empowers the organization to spend the money it raises here in order to discriminate and advocate discrimination against queer people.”

The Berkeley students also felt it necessary to publicly condemn the Salvation Army, stating they wished to express

“disapproval of the presence of Salvation Army donation containers on campus” because “queer students…may take offense to the presence of collection containers operated by a discriminator religious organization in their places of living.”

Clearly the students felt that the purported “offense” to homosexual students outweighed both the right of the bell ringers to be on campus like others with permits, and the needs of the people the Salvation Army serves. (Despite the fact that record numbers of families are requesting assistance from the Salvation Army this Christmas.)  But the Salvation Army specifically denies the allegation that they discriminate on any basis—including sexual orientation—in providing their services to needy people.  And if the Berkeley students had just looked at the Salvation Army’s mission statement, available on their website, they would see that this is true:

“The Salvation Army, an international movement, is an evangelical part of the universal Christian church. Its message is based on the Bible. Its ministry is motivated by the love of God. Its mission is to preach the gospel of Jesus Christ and to meet human needs in His name without discrimination.”

Ministry to the poor and needy has been a hallmark of the Christian Church from its earliest days—well before  government provided social services.  The Salvation Army bell ringers are merely carrying on this longstanding tradition of the Christian faith.  Ironically, the Berkeley student government has engaged in their own act of discrimination in attempting to evict these do-gooders from their campus simply because they work for a Christian organization, instead of letting students choose whether they want to drop their change in the red kettles.

I think it’s safe to say that they are on the naughty list this year.

Last month, the California Advisory Committee to the United States Commission on Civil Rights issued a report on Equal Educational Opportunity and Free Speech on Public College and University Campuses in California.  The focus of the report was whether harassment policies at these institutions intrude too much on student free speech.  As we’ve written about before on these pages, overbroad and vague harassment policies are major contributors to the national speech code problem.  Alliance Defending Freedom has represented students who challenged these policies in California (multiple times), Washington, Georgia, and Pennsylvania.

The Advisory Committee’s report is worth full examination, but here are the highlights.  First, the Advisory Committee acknowledges the danger harassment policies pose to student speech:

There is a concern that an over-emphasis by public colleges and universities on preventing illegal harassment may be undermining the free speech rights of students guaranteed by the First Amendment. Diversity of opinion and equality of opportunity also are essential to productive and enriching higher education. Previously, equal access to higher education in this country was denied to many persons on the basis of economic condition, race, color, religion, or gender. In recent decades, it has become a generally-accepted tenet that society benefits from having a publicly-funded system of higher education that is accessible and open to persons from all backgrounds. Diversity of opinion and equality of opportunity now are viewed as essential conditions for the university to successfully pursue its mission of scholarship and education. The inclusion of a broad range of social, racial, ideological and economic backgrounds contributes to a multiplicity of experiences, outlooks and ideas, promoting a richer, more scholarly environment.

The report then cites Alliance Defending Freedom’s DeJohn v. Temple University case as an example of how harassment policies can run afoul of the First Amendment.

DeJohn v. Temple University, reinforced the Davis principles, explaining students’ First Amendment rights were more preeminent in the university context “where free speech is of critical importance because it is the lifeblood of academic freedom.” The Court specifically noted: “Because overbroad harassment policies can suppress or even chill core protected speech, and are susceptible to selective application amounting to content-based or viewpoint discrimination, the overbreadth doctrine may be invoked in student free speech cases.” It declared portions of the University’s harassment policy facially unconstitutional because speech could not be prohibited merely because it may be seen as “hostile” or “offensive” without the requirements of a showing of “any requirement
akin to a showing of severity or pervasiveness.”

The Davis case referred to above is a United States Supreme Court decision that said public educational institutions may be liable for student-on-student harassment that is severe, pervasive, and objectively offensive.  DeJohn applied those principles to strike down Temple University’s harassment speech code because it allowed regulation of more than just severe, pervasive and objectively offensive speech.  A year after the DeJohn decision, the University of California reformed its system-wide harassment policy to protect student speech.

In 2009, the Office of the General Counsel of UC conducted a review of the university’s student conduct harassment policies in the wake of recent court decisions. Previous definitions of university harassment policies were similar to ones struck down in a number of recent court cases, and it was recommended that the policies be modified. As a result, the revised definition of harassment for UC is modeled on the definition of unlawful student-on-student harassment set forth by the US Supreme Court in its Davis decision.

Finally, the Advisory Committee notes that even though the Davis and DeJohn cases have been on the books for years, California’s public college and universities persist in enforcing overbroad and vague harassment policies.

Although the Supreme Court issued its Davis ruling over 10 years ago explaining offensive speech or conduct only constitutes “harassment” which can be prohibited if it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit;” and that ruling has been applied to institutions of higher learning in DeJohn and other court rulings; California public colleges and universities continue either to enact speech restrictions contrary to Davis or enforce student codes of conduct in a manner inconsistent with Davis.

Does your college have an overbroad harassment policy?  Let us know.