The ADF Center for Academic Freedom joined a broad coalition of organizations today calling on the U.S. Department of Education to clarify when colleges may and may not investigate and punish student “harassment.”  The letter, written by our friends at FIRE, is available here.

We’ve told you before how to spot a speech code, the majority of which involve anti-harassment policies.  And these unconstitutional policies are nothing new.  So why did FIRE send today’s letter?  FIRE’s president, Greg Lukianoff, explains in today’s Washington Post:

[Last year, the Department of Education Office of Civil Rights] issued a 19-page letter in April dictating to colleges the procedures they must follow in sexual harassment and assault cases. Among its many troubling points, including a requirement that sexual harassment cases be adjudicated using the lowest possible standard of evidence allowable in court, is the fact that the letter makes no mention of the First Amendment or free speech. This ignores the role that vague and broad definitions of harassment have played in justifying campus speech codes and censorship over the past few decades. By mandating so many procedural steps colleges must take to respond to allegations of sexual harassment while simultaneously failing to mandate a consistent, limited and constitutional definition of harassment, the OCR encourages those on campus who are already inclined to use such codes to punish speech they simply dislike.

Rather than proffer shifting rules, the OCR should end the threat of harassment-based campus speech codes once and for all. The Supreme Court offered its only guidance on the thorny issue of student-on-student harassment in the 1999 case Davis v. Monroe County Board of Education. The justices recognized the necessity of carefully defining what constitutes “harassment” in the educational context, lest everyday interactions be rendered a federal offense. The court defined harassment as discriminatory conduct, directed at an individual, that is “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.”

This definition, if applied fairly, poses little threat to free speech and effectively prohibits real harassment.

We hope the OCR takes notice and works to protect student free speech on campus.

ADF has just completed its appeal to the U.S. Supreme Court in a case involving the prolife student club, Rock for Life, at the University of Maryland, Baltimore County.  The case demonstrates the problems with campus “speech codes.”  Many universities have these vaguely worded policies that prohibit students from engaging in things like ”incivility”  or “disrespect” or “intolerance.”  Frequently, these speech codes allow the listeners, and not the intent of the speaker, to determine whether the speaker has violated the speech code.  So, such statements as “abortion is wrong, ” or “marriage is a man and a woman,” or “Jesus Christ is Lord,” can violate a campus speech code if the listeners feel harassed, threatened, offended, or disrespected by those words, no matter what the speaker intended with his words.

At UMBC near Baltimore, the prolife students in Rock for Life experienced the harsh application of “speech codes.”  Rock for Life received permission to display graphic photos of aborted children in an area of campus well traveled by students.  They figured it would trigger debate about abortion among the students if they saw actual aborted babies.   At the last minute before Rock for Life was going to begin its display, university police and university officials moved the prolife display to a deserted area of campus infrequently visited by students – when watching the security video of this area, you would expect to see the occasional tumbleweed blowing through this vacant expanse of campus.

How did the university justify its abrupt order to move the display?  Four overlapping policies regulating student speech.  Several of these speech codes prohibited “emotional harassment.”  And a university official – its attorney – said that he feared students might feel “emotionally harassed” by the display.  Later, he explained that he wanted to protect the students’ “emotional well-being” and prevent them from becoming “emotionally distraught.”  Hence, UMBC moved the display at the last minute.

In court, ADF challenged this ideological exile of prolife speech, as well as the broadly written “speech codes” invoked to justify their actions.  Several federal appeals courts have struck down such vague policies as violating the First Amendment because they give unbridled discretion to government officials to silence unpopular viewpoints and allow them to hide their true reasons for doing so under the vague language of the speech code.  The Rock for Life case has become mired down in some technical issues on whether the prolife students have standing to challenge all of the policies.  We hope the U.S. Supreme Court will grant review and rule that the legal challenge to the speech code can go forward.

But the speech codes at many universities threaten student speech, especially the speech of students advocating unpopular views – nowadays, that frequently means students advocating for life, marriage, or the Christian Gospel.  Speech codes also can “chill” student speech by pressuring them to self-censor their views so that they won’t get in trouble.  Policies that “chill” the free exchange of ideas on campus are also unconstitutional.  If you are experiencing any such problems, please contact us at the Alliance Defense Fund.  A university campus should truly be a free marketplace of ideas.

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As USA Today reports, “civility” policies and programs are cropping up at universities across the nation.  Some seem to be bound up with efforts to purge “bullying” from campus (my colleague David Cortman tackles that subject here), other efforts seem to have more affinity with the egg-shell student and the quest to eliminate “offensive” (read, Christian or pro-life) speech from campus.  However, you slice it, the civility police are back. 

On campuses nationwide, civility has become the mantra. The University of Nevada-Las Vegas in January signed off on a Statement of Civility that embraces “the articulation of unpopular and unsettling ideas” and “promotes the rights, safety, dignity, and value of every individual.” At Rutgers, plans for a two-year initiative called Project Civility were already in the works when Clementi jumped to his death from the George Washington Bridge. George Mason University last fall launched an elective called Professionalism and Civility.

While I don’t mind more good manners (I took a great ettique course in college on how to properly butter bread), it’s not the place of government-run universities to impose civility requirements, because they often get out of hand.  As USA Today notes:

Colleges must walk a fine line. A federal court in 2007 ruled that California State University could not impose a requirement that students “be civil to one another” because the term is too vague.

That’s exactly right.  A group of College Republicans held a free speech event at SFSU and suffered through a seven month investigation because onestudent found the event “uncivil.”  (Full disclosure: I was the CR’s lawyer.) 

Despite rulings like this, the civility/anti-bullying/anti-offensive advocates are so persistent that even Congress is considering new anti-harassment legislation that would strip students of their basic First Amendment freedoms on campus.  I would like to think that we, as a society, are better than that and can simply confront incivility with more, civil speech.  As the court in the College Republicans’ case wrote: 

It is important to emphasize here that it is controversial expression that it is the First Amendment’s highest duty to protect. By political definition, popular views need no protection. It is unpopular notions [like the sanctity of life] that are in the greatest peril-and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion. Fashion, it was understood, is an agent of repression-and repression is an agent democracy’s death.

I commend this thinking to university “civility” committees.

Will Creeley has a spot-on analysis in today’s Chronicle of Higher Education discussing why the Tyler Clementi Higher Education Anti-Harassment Act is unconstitutional and unnecessary.  Last month, Sen. Frank R. Lautenberg (NJ) reintroduced the bill in Congress, which is named after the Rutgers University student who tragically took his life last year.  Sen. Lautenberg claims the purpose of the bill is “to support colleges as they put in place and strengthen anti-harassment and anti-bullying programs.”  But the bill is flush with overbroad and vague restrictions on speech: 

[A] closer examination of the bill, reintroduced in both houses of Congress last month, reveals a serious threat to student speech on campuses­ and a looming predicament for college administrators. Were the act to pass, students would face an unacceptable risk of punishment simply for engaging in protected expression. For their part, administrators would be stuck in a legal limbo, caught uncomfortably amid the First Amendment, federal courts, and legislation.

As Creeley explains, the bill’s definition of harassment conflicts with the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education by failing to require that harassment be objectively offensive before it may be deemed prohibited.  This leaves the definition of harassment in the subjective hands of listeners and administrators. 

What’s more, if the bill passed both houses of Congress, it would immediately conflict with the U.S. Court of Appeals for the Third Circuit’s 2008 decision in DeJohn v. Temple University (I represented Mr. DeJohn).  As Creeley concludes, in DeJohn:

the appeals court struck down Temple’s former sexual-harassment policy on First Amendment grounds because it failed to track the Davisstandard. The Third Circuit held that because Temple’s policy failed to require that the conduct “objectively” created a hostile environment, it provided “no shelter for core protected speech.” In other words, because Temple’s policy suffered from precisely the same deficiency now found in the proposed Tyler Clementi Act, it violated the First Amendment.

In other words, the federal appeals court that has jurisdiction over Sen. Lautenberg’s home state of New Jersey, has already ruled that much of the language in his bill violates the First Amendment.  Universities have enough trouble writing harassment policies that comply with the First Amendment.  The Tyler Clementi Act doesn’t help.

It’s a good day when the Seventh Circuit hands you a First Amendment win.  It’s an even better day when Judge Posner writes the opinion.  And he did just that today when the Seventh Circuit ruled in Zamecnik v. Indian Prairie School District, that Neuqua Valley High School in Naperville, Illinois violated the First Amendment rights of two students by prohibiting them from sharing their views opposing homosexual conduct.  Here’s a brief background on the case: 

In April 2006, Heidi Zamecnik, a student at Neuqua Valley High School in Naperville, wore a T-shirt to school with the message “Be Happy, Not Gay.” She wore the shirt because the school permitted other students the previous day to wear shirts showing support for homosexual behavior as part of the “Day of Silence,” an event promoted by the Gay, Lesbian, Straight Education Network.

Even though Zamecnik’s shirt caused no disruptions, the school’s dean demanded later that day that she remove it or be sent home for the day. After speaking with Zamecnik’s mother by phone, all agreed to change the shirt to read, “Be Happy, Be Straight.” However, the dean did not abide by the agreement and instead had a female counselor cross the words “Not Gay” off Zamecnik’s shirt so it simply read “Be Happy.”

Alex Nuxoll, another student at Neuqua Valley High School, desired to express his perspective in similar fashion throughout the same year, including the school day following the “Day of Silence.”

In ruling for the students, Judge Posner writes: 

Thus a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. The school argued (and still argues) that banning “Be Happy, Not Gay” was just a matter of protecting the “rights” of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life. . . .  Although tolerance of homosexuality has grown, gay marriage remains highly controversial.  Today’s high school students may soon find themselves, as voters, asked to vote on whether to approve gay marriage, or to vote for candidates who approve of it, or ones who disapprove.

After discussing other cases in which secondary schools have banned student speech, Judge Posner writes: 

These cases, more extreme than ours, do not establish a generalized “hurt feelings” defense to a high school’s violation of the First Amendment rights of its students.  “A particular form of harassment or intimidation can be regulated . . . only if . . . the speech at issue gives rise to a well-founded fear of disruption or interference with the rights of others.” Sypniewski v. Warren Hills Regional Bd. of Education, 307 F.3d 243, 264-65 (3d Cir. 2002). The same court, in Saxe v. State College Area School District, 240 F.3d 200, 209 (3d Cir. 2001), found “little basis for the District Court’s sweeping assertion that ‘harassment’—at least when it consists of speech targeted solely on the basis of its expressive content—’has never been considered to be protected activity under the First Amendment.’ Such a categorical rule is without precedent in the decisions of the Supreme Court or this Court, and it belies the very real tension between antiharassment laws and the Constitution’s guarantee of freedom of speech.”

In other words, only severe, pervasive, and objectively unreasonable harassment is sanctionable by schools, as we’ve argued before in university speech code cases.  This is a good win for high school student speech and one that will also impact college campuses in Illinois, Indiana and Wisconsin.