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.

FIRE has released its second annual survey of America’s Best Colleges for Free Speech.  This year, seven colleges receive the rare distinction of being ivory towers that welcome free expression.  FIRE’s President Greg Lukianoff describes the methodology and the results in the Huffington Post.  Be sure to take a look at his article, but for those who cannot wait, here’s FIRE’s list (in no particular order):

• James Madison University
• The College of William and Mary
• University of Mississippi
• Mississippi State University
• University of Tennessee – Knoxville
• University of Virginia
• University of Pennsylvania

Interestingly, Lukianoff points out a trend that when one college revises its policies to be more welcoming to free expression, other colleges in the state begin to do the same thing.  He’s right.  No one wants to be seen as the lone censor of free speech.  For example, in Virginia, we were involved in Rosenberger v. University of Virginia at the U.S. Supreme Court, which ended a discriminatory policy banning religious student groups getting equal access to student fees and campus facilities.  And earlier this year, we scored another win in Virginia when Virginia Tech ended a similar ban on religious student groups accessing student fees.  Colleges follow the free speech leader.

Did your college not make FIRE’s list?  Perhaps you can be the catalyst to encourage your college to set the trend in your state.  Contact us and let us know if you’ve had trouble expressing your beliefs on campus.

This  may be the closest we get to seeing the Supreme Court on T.V., or at least one justice asking questions of advocates who happen to be decorated felt fitted over someone’s hand.  Justice Sonia Sotomayor has taped an appearance on Sesame Street, interacting with Muppets who bring their cases to her.   And she does a pretty good job for someone who is not a professional actor (no snide comments, please!).  For example, Goldilocks and the Baby Bear (a bearrister?) bring their dispute before Justice Sotomayor, in which she expounds upon the important mens rea issue in the case, as she fashions an appropriate remedy to make the plaintiff whole.  Next week – Justice Stephen Breyer appears on The Simpsons as the long lost twin brother of Mr. Burns.  

Yesterday marked the 30th anniversary of the U.S. Supreme Court’s landmark decision in Widmar v. Vincent.  Perhaps you’ve never heard of this case, or perhaps you don’t really care.  But you should.  For Widmar is the cornerstone of modern religious liberty jurisprudence.

In the 1970s a small, but thriving group of Christian students from various denominational backgrounds met regularly on the campus of the University of Missouri at Kansas City.  They called their group, Cornerstone.  The students met in the University’s student center and other facilities to pray, sing hymns, read scripture, share personal testimonies, and discuss the Bible.

But in 1977, the University decided that Cornerstone could no longer meet in its facilities.  The University said that it had a regulation that prohibited the use of its buildings or grounds for religious worship or religious teaching.  I suspect that universities across the country had been doing this sort of thing for years.  There was, and still is, a mistaken understanding of the First Amendment as it applies to student speech on campus, particularly the application of the Establishment Clause, and university administrators, whether in good faith or not, regularly oust Christian student groups for fear of violating it.  But rather than capitulate and move their meetings off campus, the students in Cornerstone drew a line in the sand and said, “No more.”  We owe them a debt of gratitude.

Eleven students filed a lawsuit against the University, alleging that its policy of excluding religious worship and teaching from University buildings violated the First Amendment.  I can imagine they asked their lawyers many of the same questions ADF clients ask me:  Will this have an effect on my degree?  Will the university punish me for suing it?  What will I tell my friends?  These are valid questions, but it seems they already answered the most important question, “why should I do this?”  The eleven students must have known that the ability of their group to survive and share God’s Word depended on it reaching students on campus.  And the only way to reach students on campus was to be on campus.

The students road to justice, however, was not paved smoothly.  The federal trial court ruled against them and held that the Establishment Clause of the First Amendment not only justified, but required the University’s exclusionary policy.  Our nation’s misapprehension of the Establishment Clause runs deep.

A federal court of appeals reversed that ruling and held that the University’s policy of banning worship was a content-based regulation of speech for which there was no compelling justification.  It also ruled that the Establishment Clause does not bar religious speakers from accessing a publicly open facility on equal terms with all other speakers.

The University, not satisfied with this result, asked the Supreme Court to take the case.  And against all the odds, it did.  The case was argued the day before my second birthday in October 1981, and the Court handed down its decision two months and two days later, December 8, 1981, the day after the fortieth anniversary of Pearl Harbor.

In Widmar, the Court held that the University’s policy of excluding religious worship and religious teaching from generally open university facilities discriminated against speech based on its religious content.  In other words, if the University opened its facilities for basically any type of speech, it could not exclude religious speakers.   The Court also held that the government does not violate the Establishment Clause by opening its facilities neutrally to private expression.

When the decision came down, Linda Greenhouse wrote in the New York Times that the “decision is significant . . . in that it provides what may be the Court’s clearest explanation so far of how religious observance fits within the free speech guarantees of the First Amendment.”  Religion, it seemed at the time, would not be relegated to second-class status.

Widmar paved the way for many of the Court’s subsequent religious speech cases involving access to public school facilities, student activity fee funding, and church use of public facilities.  It even set the legal table for Congress to later enact the Equal Access Act, which protects the ability of religious student clubs to meet on public school property.  If you were ever in a Christian club at your public school or college or if you have ever attended a church or Bible study that met in a school or public facility, you have Widmar to thank.

Despite Widmar‘s remarkable impact on religious liberty, some have forgotten it.  Just this week, we told you about the disappointing result in Bronx Household of Faith v. The Board of Education of the City of New York.  The Bronx case, like Widmar, involved a group of Christians who sought to use publicly available school facilities for their Sunday morning gatherings, but who were prohibited from doing so because the city banned worship in its facilities.  For a decade the church litigated whether the city’s policy violated the First Amendment, and in June, the federal court of appeals ruled that the city’s policy was constitutional.  The result:  an estimated 60 churches will be evicted in February because of this ruling.  Yes, that’s right, in direct conflict with the Supreme Court’s decision in Widmar, a subordinate federal court excluded Christians from publicly available facilities because of the way in which they communicate their speech – worship.  It seems some people want to forget Widmar, or at least relegate it to a dusty storage room shelf.

But some have not forgotten.  Yesterday, on Widmar‘s 30th anniversary, many people gathered on the steps of City Hall in New York, including city council members, congregants, and pastors of churches that will be evicted in February.  They rallied to repeal the city’s discriminatory policy and to keep churches meeting in city boroughs that desperately need them.

So why shouldn’t you forget Widmar?  Professor Michael Stokes Paulsen says it best:

Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject . . . .

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

So lest we lose the precious freedoms we have, don’t forget Widmar.  “Tell your children about it in the years to come, and let your children tell their children. Pass the story down from generation to generation.”  (Joel 1:3)

Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion on some of the cases we have described here, like Elane Photography in New Mexico (who was sued for discrimination for declining to photograph a same-sex commitment ceremony), Jen Keeton in Georgia and Julea Ward in Michigan (who were expelled from graduate school programs in counseling from Augusta State and Eastern Michigan University, respectively, for refusing to change their beliefs that same-sex behavior is morally wrong). 

What I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia.   Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position.  It does not.  I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case.  The decision doesn’t help them.  So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”

I have earlier discussed the deficiencies in analogizing a law defining marriage as one man and one woman as the law struck down in Loving v. Virginia. Because so many find the argument persuasive, let me state here what I said to the law students at Stanford:

The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court.   That interracial marriage was OK because it did not include any white people.  The obviously uneven application of the law based on race is why the Supreme Court struck it down.  These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.

Race is different than sex. It would have been unconstitutional too if the miscegenation law said, “whites can only marry whites, and blacks can only marry blacks, ” etc.  But that’s not what the Virginia law struck down by the Supreme Court said.  That hypothetical does not provide any precedent for striking down a regular marriage law.  Even if the law did say that, it’s not important, because race is different from sex.  Only one man and one woman can produce a child, and the parents can be of any race.  Two men together or two women together will never produce a child. So having an opposite sex couple is essential for producing children.  What is critical is having one man and one woman.  The parents’ race is irrelevant in their ability to reproduce.   It is rational, in fact, it is wise for a society to urge men and women to get married in order to produce and raise their children, because they represent the next generation of their society.

Race has never been a universally-accepted element in the states’ definition of marriage. States generally have agreed that people seeking marriage must meet several criteria.  For example, the two people seeking marriage must be a man and a woman, they cannot be married to anyone else, they both must possess the mental capacity to consent to marriage, they cannot be near relatives (like brother and sister) and they both must be above a certain age.  Race has not been a universally-accepted part of the definition of marriage.  For example, not all states banned white people from having an interracial marriage.  Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites.  The existence of miscegenation laws is a sordid historical fact.  The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.

Some states did not ban interracial marriages consistently. Virginia was faced with the dilemma that one of its founders, John Rolfe, married a nonwhite woman, the famed Pocahantas. Virginia resolved this dilemma by making Pocahantas an honorary white person, and exempted marriages (in some circumstances) where a white person married a Native American.

I hope I convinced at least some of the law students at Stanford to stop embracing the false parallel between Loving v. Virginia and the efforts to legalize same-sex marriage.