Last year Casey started the tradition of completing an NCAA bracket based on how well the universities protected the constitutional rights of their students.  And Heather and Jeremy have continued this tradition by covering the Southeast and East Regionals, respectively.  Of course, Casey’s original rules still apply, though Jeremy’s new rule is—in the eyes of this Tarheel fan—a long overdue addition (even though Senator Jesse Helms once remarked—correctly—that if the Soviets ever invaded America, they would feel at home in Chapel Hill).  However, without further ado, here are the First Amendment picks for the Southwest Regional.

University of Kansas v. University of Richmond

In this matchup, the fact that the University of Richmond is private gives it an initial edge over the public University of Kansas.  But as Richmond is secular, this distinction hardly tips the First Amendment scales. 

Both schools earn FIRE’s red light rating.  For example, Richmond prohibits “inappropriate behavior or expression,” which is hardly a model of clarity and causes students to steer well clear of anything anyone might consider “inappropriate.”  And the speech code in its sexual harassment policy prohibits speech that might create a “hostile, intimidating, or offensive environment.”  While this language is hardly unique to Richmond, other harassment policies do not apply unless the speech is “sever[e] and/or persisten[t],” which mirrors the Supreme Court’s standard for harassment guidelines.  So its failure to include such language in its sexual harassment policy is a strike against the school’s First Amendment fortunes. 

Kansas features similar policies, including several that prohibit comments that create a “hostile, intimidating, or offensive environment.”  Its housing guidelines prohibit students from doing anything that “purposely humiliates another person” and from “making degrading comments.”  Such ambiguous, in-the-eye-of-the-beholder rules cover a wide spectrum of speech that the First Amendment protects. 

However, Richmond’s “Bias Incident Protocol” tips the balance in the Jayhawks’ favor.  At Richmond, anyone who thinks he might be subject to a “bias incident” can report it to the “Bias Response Team” for “support and guidance.”  And what is a “bias incident”?  Is it discrimination?  No.  Is it a crime? No.  Its definition has to be read in full to be appreciated:

[A]cts that do not appear to constitute a crime or actionable discrimination, but which may intimidate, mock, degrade, or threaten, individuals or groups and which one could reasonably conclude targets a member or group within the University community because of that individual or group’s actual or perceived age, ancestry or ethnicity, color, creed, disability, gender, gender identity or expression, immigration or citizenship status, marital status, national origin, race, religion, religious practice, or sexual orientation.

So what is a “bias incident”?  Virtually any expression that any hearer does not like for any reason, which also happens to be the very kind of speech the First Amendment is designed to protect.  So in this matchup, the First Amendment pick goes to the Kansas Jayhawks.

Virginia Commonwealth University v. Florida State University

This contests pits a school FIRE has not ranked (VCU) against one that earned its red light rating (FSU).  The Seminoles earned this distinction largely because of their numerous speech code policies that prohibit speech that creates “an intimidating, hostile, or offensive environment.”  While these policies punish a broad spectrum of protected speech, Florida State has also turned back two attempts to derecognize or defund religious student groups because they limit leadership to students who agree with the group’s religious views.  And under the principle that “practice beats policy,” this weighs heavily in the Seminoles favor.

Like Florida State, VCU prohibits speech that “of a hostile, intimidating, or offensive nature.”  While prohibiting “disruptive behavior,” its housing policy prohibits creating “emotional” disturbances, which could conceivably cover anything, including a fellow breaking up with his girlfriend.  (See here at page 31.)  And while the First Amendment guarantees students the freedom to distribute literature in the outdoor areas of campus, VCU either ties them to informational tables that can only be placed in limited areas or forces them to reserve “literature distribution areas.”  (See here at page 19.)  All of this is especially troubling since so many Virginia universities have “gone green” by reforming their policies to comply with the First Amendment.

In short, Florida State’s history of respecting religious groups compensates for its red light rating, especially since VCU has similar policies and should have learned from its neighboring schools.  So the First Amendment picks the Florida State Seminoles.

University of Kansas v. Florida State University

Moving from the Sweet Sixteen to the Elite Eight, Florida State’s history of respecting religious groups again compensates for its policies and gives it the advantage over Kansas’ unconstitutional policies.  So the First Amendment prediction is that the Seminoles will tomahawk the Jayhawks to earn a trip to the Final Four.

Check out the Sweet Sixteen of Liberty: Southeast Region 

 Check out the Sweet Sixteen of Liberty: East Region

Standing.  For most people, it is something they mastered when they were about one or two years old.  For lawyers, it is a migraine-inducing set of legal doctrines that dictates whether someone has the right to bring a lawsuit in federal court.  For two sets of university students, this migraine has been particularly acute because it has prevented them from challenging blatantly unconstitutional speech codes that governed their every interaction on campus.  And for the Supreme Court, it is the subject of two briefs that ADF filed yesterday.

As David French explains at Phi Beta Cons, this standing question is critical for students because it determines whether courts will even review their schools’ speech codes.  Until recently, the unquestioned rule was that students could challenge policies that “chilled” their speech.  As a nation, we value the free exchange of ideas so much that courts did not want people choosing not to speak for fear of being punished.  And so if a policy restricted a student’s speech, he could challenge it.  This was the rule that the Third, Sixth, and Seventh Circuits, as well as numerous district courts, applied to university students in light of similar Supreme Court decisions.

However, the Fourth and Ninth Circuits have taken a different approach.  In these cases, students engaged in speech that the First Amendment unquestionably protects.  Jonathan Lopez gave a speech defending the definition of marriage, and Rock for Life presented a display defending unborn life.  Jonathan’s professor interrupted his speech, called him a “fascist bastard” in front of the class, accused him of “offending” the class, refused to grade his speech (saying, “Ask God what your grade is” on the evaluation sheet), and threatened to get him expelled when he complained about this mistreatment.  The University of Maryland, Baltimore County moved Rock for Life’s display to a deserted area of campus, saying that it might “emotionally harass” other students.  Yet the Ninth and Fourth Circuits said neither Jonathan nor Rock for Life has the right to challenge the speech codes that motivated these actions.  And so policies that other courts have struck down remain on the books, and student expression on campus remains squelched.

Americans rightly value the freedoms the First Amendment protects, particularly the freedom to speak our minds.  Yet, if we cannot get in the courthouse door when those freedoms are violated, the First Amendment essentially becomes a dead letter.  And that is why Jonathan’s and Rock for Life’s cases matter so much for every student nationwide.

What speech would be “controversial” on your campus?  If you attend a public university, the odds are good that “controversial” and “Christian” or “pro-life” are likely synonymous.  So if the University could impose greater restrictions on your speech just because they deem your views “controversial,” this would provide a nice and easy way to marginalize Christian, pro-life or other conservative speech.  The mere fact that your expression would draw hecklers angry that you dare upset the monolithic liberalism and anti-Christian views on many university campuses would be justification for the school to restrict your speech.

If you attend the University of Massachusetts-Amherst this isn’t a hypothetical, this was school policy.  UMass-Amherst earned the Foundation for Individual Rights in Education’s Speech Code of the Year for 2010 for this policy.  Not only did UMass-Amherst impose greater restrictions on rallies where it deemed the views “controversial,” but it imposed a 48 hour pre-approval policy for even non-controversial rallies (7 days for “controversial” ones) and allowed administrators unbridled discretion to approve or deny these rallies for any reason.  And UMass required “controversial” rally organizers to designate six students to form a security team – placing these students at risk from their opponents and effectively preventing small student groups from holding such rallies.

In response to a letter on behalf of the UMass Students for Life from ADF Allied Attorney Mari Chamberlain of Jacobi, Chamberlain, LLP in Lexington, Massachusetts, UMass-Amherst has eliminated these unconstitutional policies.  On Wednesday UMass confirmed that it has now eliminated the controversial/noncontroversial rally distinction altogether, now only asks that space be reserved 24 hours in advance of any “rally” and eliminated its requirement that students place themselves in danger by providing a six person student security team.   This is a significant improvement on UMass’s speech policies that had ranked among the worst in the country.

Problems still remain.  Among them, UMass still doesn’t define “rallies” well, making it unclear whether a single student wishing to speak on campus must comply with this policy.  And rallies – whatever that means – are still limited to a single location, the steps of the Student Union building.  We are following up on these remaining concerns, but it’s still a good week for free speech at UMass.

The U.S. Department of Education issued a “Dear Colleague” letter Tuesday which reportedly reinforces the Department’s commitment to curb bullying through federal harassment laws.  However, the letter confuses earlier Department policy, provides harassment examples that run into protected speech, and fails to adequately remind administrators of their First Amendment obligations. 

The letter is addressed to primary and secondary school administrators.  Yet the Department also makes clear that “the legal principles also apply to postsecondary institutions covered by the laws and regulations enforced by [Office for Civil Rights].”

The letter defines harassment adequately:  “conduct [that] is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school.”  (Actually, this definition is a bit broader than how the Supreme Court defined harassment in Davis v. Monroe County Board of Education.)  But the letter’s examples of harassment intrude on the First Amendment’s protected sphere.  The letter states that harassment includes “verbal acts and name-calling, graphic and written statements, which may include use of cell phones or the Internet.” 

University administrators will read these examples and no doubt expand their harassment speech codes accordingly.  In fact, the letter encourages them to do so:  “An effective response also may need to include the issuance of new policies against harassment….”  Those policies will not be limited to campus speech, but will now seek to control what college students can post on Facebook, blogs, emails and text to each other.  By providing these expansive definitions of harassment, the Department invites college administrators to violate students’ First Amendment rights.   

At the end of the letter, after you read through these definitions and examples, you learn that the Department issued another “Dear Colleague” letter in 2003 that addresses the balance between harassment law and free speech.  However, this week’s letter does nothing to reassert or reinvigorate that balance, even in the face of recent federal court decisions striking down college harassment policies.  The letters are quite different in their tone and concern for free speech.  The 2003 letter reminds universities of their constitutional obligations: 

Some colleges and universities have interpreted OCR’s prohibition of “harassment” as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.

That acurately sums up federal law as interpreted by the courts.  This week’s letter does not.  Instead it encourages broadening the scope of harassment laws in the face of court precedent limiting their scope on university campuses.  This letter will lead to more litigation, and you can thank the Department of Education for it.

“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.

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