“Those who don’t know history are destined to repeat it.”     – Edmund Burke

Administrators at the University of Wisconsin-Madison should consider contacting legal counsel before launching their ”Stop the Silence” campaign.  In the wake of the Rutgers tragedy, higher education circles have been buzzing about creating new policies and programs to curb harassment on campus.  My colleague, David French, does an excellent job of deconstructing the pitfalls of the academy’s desire to do “more” after campus tragedies.  I won’t repeat his comments, but I do want to point out that the academy is already reacting with “more,” and UW-Madison is taking the lead.

On Columbus Day, UW-Madison launched its “Stop the Silence” campaign, which is designed to curb harassment on campus.  A laudable goal – one that federal and state law already amply handle - the campaign’s problems lurk in how Madison will implement it.  Dean of Students Lori Berquam says that “bullying and harassment can take many forms, including emotional, verbal, physical and even electronic.  At its core, it is aggressive, uncivil behavior designed to hurt or marginalize others.”  (emphasis mine).  UW-Madison says the new campaign will dovetail with the university’s bias reporting system.

As a university that likes to think of itself as an epicenter of the 1960s student free speech movement, Madison needs a short history lesson before it tramples students’ free speech.  Over 20 years ago, the University of Wisconsin System adopted the “Design for Diversity” plan to increase “multi-cultural understanding and greater diversity” in response to “concerns over an increase in incidents of discriminatory harassment.”  Pursuant to the plan, the UW System enacted a student code of conduct rule that prohibited

racist or discriminatory comments, epithets or other expressive behavior directed at an individual . . . if such comments, epithets or other expressive behavior or physical conduct intentionally:

1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and

2. Create an intimidating, hostile or demeaning environment for education . . . .

Two years later, in UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, a federal district court struck down this policy as overbroad.

More recently, a federal court in San Francisco struck down a policy at San Francisco State University that required students to “be civil” to one another.  Like the UWM Post decision, the court determined that such a requirement prohibited a vast amount of protected speech.  And just last year, the enforcement mechanisms in a ”Stop the Hate” program at Spokane Falls Community College were removed after administrators used it to silence a student’s pro-life speech on campus.

Despite the noble intentions of creating a campus environment where students treat each other nicely and debate each other on contentious social issues rather than stigmatizing those they disagree with (which, oddly enough always reminds me of a Star Trek episode), it seems UW-Madison’s new  Stop the Silence campaign is poised to fall like its predecessors.  Given the tenacity with which students have challenged UW-Madison policies in court over the years, the administration would do well by treading carefully with their new campaign.

Join the conversation: Facebook.com/SpeakUpU

I’ve taken a particular interest in the pro-life activities of Canadian students in recent years because of the bravery and commitment these students display in the face of unbearable restrictions on their speech.  I’ve also warned that if we do not zealously protect our freedom of speech in America, then pro-life students here will begin to encounter the same restrictions as their friends north of the boarder.  But only recently have I realized how similar we’ve become.  Events this month at Carleton University in Ontario are strikingly similar not only to our video series about Hanna, but also to our case involving Rock for Life at University of Maryland, Baltimore County.

Carleton arrested five students on October 4th for displaying Genocide Awareness Project signs on campus.  GAP signs show the horrors of abortion by comparing it to genocide in other contexts.  The students were members of Carleton Lifeline, a student club at the university, and obtained permits for the event.  However, as the Brock Press reports, Carleton shut down the event and arrested the students for trespassing because the GAP signs might have offended some people:

Jason MacDonald, a spokesperson for the University, said other jurisdictions have deemed the content offensive because of its graphic nature.

“We need to balance the students’ right to express themselves on this particular issue and to do so freely with the fact that some people may not be comfortable seeing larger-than-life images of aborted fetuses as they walk through campus,” said MacDonald.

MacDonald said the University offered the students the opportunity to display their exhibit in an auditorium called Porter Hall, an area that Lobo calls isolated and “off the beaten path”.

The students refused to move the event, so police arrested them for trespassing.  You read that right, tuition-paying students arrested for trespassing on their own campus.  Here’s a video of the arrest at Carleton:

Compare the situation at Carleton to Hanna’s story that we posted a few days ago:

Additionally, the situation at Carleton is eerily similar to what our clients experienced in Rock for Life v. Hrabowski.  In that case, pro-life students at University of Maryland, Baltimore County applied for permits to bring the GAP display to campus and when the students began setting up the display, the University, like Carleton, moved them to a vacant field far away from student pedestrian traffic.  The students complied, and likely averted arrest, but sued the University for moving the event and for threatening them with punishment under the University’s harassment policies.

Each of these situations demonstrate that universities strive to avoid discussing the merits of reproductive policy.  Instead, they simply stigmatize students by labeling their speech “offensive” and then move them to a location where no one will hear.  I applaud the students for standing up for the unborn and free speech, and will continue to monitor the developments at Carleton.

UPDATE:  ADF allied attorney John Carpay writes in today’s Calgary Herald that a recent decision in Pridgen v. University of Calgary, may help the Carleton students.  The Alberta Court of Queen’s Bench ruled that the Canadian Charter of Rights and Freedoms protects students’ rights to express their opinions on campus.  The column is worth a read. 

Join the Movement: Facebook.com/SpeakUpU

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.

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.

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.