The Volokh Conspiracy

The case is McCauley v. University of the Virgin Islands, decided today. The court holds that the K-12 school cases — “Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech in public elementary and high schools” — “cannot be taken as gospel in cases involving public universities,” and strikes down (at least when applied to speech) university bans on

1. “Displaying in the Field House, softball field, soccer field, cafeteria and Reichhold Center for the Arts any unauthorized or obscene, offensive or obstructive sign,”
2. “[C]onduct which results in physical manifestations, significant restraints on normal behavior or conduct and/or which compels the victim to seek assistance in dealing with the distress,” and
3. “Verbal Assault, Lewd, Indecent or Obscene Conduct or Expressions on University Owned or Controlled Property or at University Sponsored or Supervised Functions,” when applied to speech that does not fit within the “obscenity” exception to First Amendment protection (an exception that’s limited to hard-core pornography).

The Foundation for Individual Rights in Education, which filed an amicus brief in the case, has more.

From Sonnier v. Crain (5th Cir. July 27):

Sonnier argues … that SLU’s speech policy violates the First Amendment because it gives the University the “sole discretion … in determining both the need for, and the strength of the security” at the public assembly or demonstration, and assesses the cost of additional security on the sponsoring individual or organization. In response, the defendants assert that the fee has never been charged. Regardless of whether the fee has ever been charged, we agree with Sonnier.

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for “the cost of necessary and reasonable protection [for assemblies] … [that] exceeds the usual and normal costs of law enforcement ….” The Forsyth County Court found the security fee unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.”

The SLU security fee provision has the same shortcomings as the ordinance struck down in Forsyth County. As the policy states, determining the additional amount of security needed is at the “sole discretion” of the University; no objective factors are provided for the University to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the University, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

The court had no occasion to discuss the second basis for the Forsyth County decision, which was (and here I quote the Supreme Court’s decision as to parades on public streets in Forsyth, rather than the Fifth Circuit’s decision as to demonstrations at public universities in Sonnier),

The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.

The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said … activit[y].” In order to assess accurately the cost of security for parade participants, the administrator “‘must necessarily examine the content of the message that is conveyed,’” estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit….

The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

But I think this prong of Forsyth would likewise apply to universities, under the Fifth Circuit’s logic:

Continue reading ‘Important Case on Public Universities’ Charging Speakers Security Fees (Especially in Anticipation of Possible Hostile Reaction by the Audience)’ »

Sonnier v. Crain (5th Cir. July 27) has an interesting discussion, in which the Fifth Circuit panel (by a 2-to-1 vote) defers considerably to universities’ prerogatives, even without deciding that the university locations are not public fora. The appellate court upholds the trial court’s denial of a preliminary injunction of a policy that required all public assemblies or demonstrations — even organized by small groups — to get a permit (1) for which seven days’ notice was required, (2) which would only be issued to each individual or group for two hours once per week, (3) for which the applicant had to provide various personal information, and (4) which was limited to a few specific locations around campus. The court repeatedly stressed that even though some such restrictions might be unconstitutional on city sidewalks and other such places, the university had broader authority to imposed content-neutral speech restrictions on its campus.

The court did note, however, that the plaintiff might still prevail in an as-applied challenge, after more discovery. Its reasoning is also limited to content-neutral speech restrictions.

I explain below why the Ninth Circuit’s Rodriguez decision applies to harassment lawsuits brought against private employers. Here I’d like to explain why and how it would apply to non-academic employers.

Rodriguez does say that its First Amendment analysis, and its statement that “Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment” is “particularly so on college campuses.” But it didn’t say that it is only so on college campuses; the opinion’s rationale applies equally to other workplaces as well:

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448–49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito –EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)….

The Constitution embraces … a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. See, e.g., Gitlow v. New York, 268 U.S. 652, 667 (1925); id. at 673 (Holmes, J., dissenting). The right to provoke, offend and shock lies at the core of the First Amendment.

Continue reading ‘The Ninth Circuit Rodriguez Opinion and Speech in Non-Academic Workplaces’ »

The Rodriguez decision arose in a public community college, and it stressed the importance of academic freedom. But I think it would also be relevant to Title VII lawsuits based on speech in non-academic workplaces, and in private workplaces (though not to individually directed insults or sexual propositions). Here let me talk about the private workplaces; I’ll talk about non-academic workplaces in a separate post.

Say that someone says something offensive in a private workplace, perhaps a private university but perhaps just a private law firm — for instance, through a workplace-wide e-mail, or in a lunchroom conversation that offended coworkers overhear, or in a cartoon posted on his office door. The private employer could of course restrict this speech without violating the Constitution, since the Constitution only applies to state action (with “state” here meaning “government,” including federal, state, and local governments). But if someone sues the employer, claiming that the employer had a legal duty to suppress speech and conduct that creates a hostile environment, then any imposition of liability on the employer for the employee’s speech would indeed be state action.

Consider an analogous case, Noah v. AOL Time Warner. Noah sued AOL, claiming that anti-Muslim speech in various AOL venues created a hostile public accommodations environment. The court held that the federal statute didn’t apply here, because the federal public accommodations statute doesn’t cover service providers (though some state statutes might), and because § 230 immunizes them. But the court also said that “construing Title II as plaintiff requests, to require that AOL censor or limit the speech of its members, may well cause the statute to run afoul of the First Amendment.” Why? Because even though AOL could restrict speech on its own private property, the First Amendment is triggered when federal or state law is read as requiring private property owners to so restrict speech (on pain of liability).

Continue reading ‘The Ninth Circuit Rodriguez Opinion and Speech in Private Workplaces’ »

“we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.” So writes the Ninth Circuit in today’s Rodriguez opinion, in an important holding about the interaction of the First and Fourteenth Amendments.

I’ve written before against arguments that First Amendment rights need to be weighed against Fourteenth Amendment equality values, in a way that might justify restricting allegedly bigoted speech; I likewise criticize calls (whether from the left or the right) to weigh free speech rights against constitutional democracy values, constitutional privacy values, and the like. One of my arguments is that bigoted speech doesn’t actually violate the Equal Protection Clause, and to the extent that it offends “equal protection values,” those “values” can’t be seen as trumping First Amendment rights. But today’s Rodriguez opinion from the Ninth Circuit had a special twist on this constitutional conflict argument.

The premise of hostile environment harassment law, under which speech in workplaces, educational institutions, places of public accommodation, and the like could lead to liability, is this: An employer, educational institution, or place of public accommodation that tolerates speech or conduct that creates a hostile environment based on race/religion/sex/etc. for some of its patron is discriminatorily providing a worse environment to some people than to others. Therefore, the courts have held, the institution is violating statutes that ban such discrimination, and can be held liable under such statutes (for instance, Title VII of the Civil Rights Act of 1964 or similar state laws).

Now here’s the twist: The Equal Protection Clause has been held to bar discrimination based on race/religion/sex/etc. by government entities, even in the absence of any statute. Therefore, by the same logic as in the preceding paragraph, it has been read as barring government entities’ tolerating hostile work environments as well. So, the argument would go, in such a situation there is indeed a conflict between actual Equal Protection Clause rights (the right not to have a discriminatorily hostile environment tolerated by a government employer, educator, etc.) and First Amendment rights. The Rodriguez opinion confronted this argument, and while the treatment is fairly brief — this is a court opinion, not a law review article — it struck me as quite effective:

Continue reading ‘“Free Speech Has Been a Powerful Force for the Spread of Equality Under the Law”;’ »

I’ve long written about how workplace harassment law sometimes violates the First Amendment, so I was especially pleased to see today’s Rodriguez v. Maricopa County Community College Dist. (9th Cir.) (written by Chief Judge Kozinski, and joined by retired Justice O’Connor, sitting by designation, and Judge Sandra Ikuta). The entire opinion is much worth reading, and it’s readable and not too long (about 11 pages). But here’s the heart, which I like very much:

Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District, where he teaches math. [For details, see PDF pp. 4-5 of the opinion, or the end of this post. -EV] Every district employee with an email address received a copy. Plaintiffs, a certified class of the district’s Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski’s emails created a hostile work environment in violation of Title VII and the Equal Protection Clause…. The district court … denied summary judgment to the president and chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims….

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito -EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596-97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)….

Continue reading ‘Freedom of Speech vs. Workplace Harassment Law — A Big Free Speech Win in the Ninth Circuit’ »

From the Canadian Broadcasting Corporation:

The University of Calgary is threatening to expel a group of students who refused to move a graphic anti-abortion display on campus….

[In november 2008, the group] refused university administrators’ requests to make the posters [of aborted fetuses] — which compared abortion to the Holocaust and the genocide in Rwanda — less visible, and also ignored a letter threatening legal action.

Six students were charged with trespassing on campus, but those charges were later stayed.

The group put up the display again on April 8, and was asked by campus security to turn the graphic images inward, away from passersby. The students snubbed that request and refused to leave campus, according to the university’s letter.

Their “failure to comply with the direction of a campus security officer or university official in legitimate pursuit of his/her duties” could result in sanctions ranging from fines or probation to suspension or expulsion….

Judging by the photograph in the newspaper, the sign at issue is this one:

The Foundation for Individual Rights in Education reports:

A student performance of an excerpt from Corpus Christi, a play positing Jesus Christ as a gay man, was canceled this past Friday at Tarleton State University (TSU) in Texas amid controversy and calls for censorship.

The performance of the excerpt, which was to be directed by TSU student John Otte, was scheduled to be held on Saturday morning as fulfillment of an assignment for an advanced directing class. Instead, Corpus Christi and three other student-directed plays, also scheduled for Saturday, were canceled by the class’s professor late Friday evening[, citing] … “safety and security concerns for the students as well as the need to maintain an orderly academic environment.” …

Otte’s selection of award-winning American playwright Terrence McNally’s play had prompted condemnation from fellow students and community members because of the play’s content. Shamefully, even Texas Lieutenant Governor David Dewhurst weighed in on the side of censorship, saying in a statement that “Every citizen is entitled to the freedom of speech, but no one should have the right to use government funds or institutions to portray acts that are morally reprehensible to the vast majority of Americans.”

Fortunately, however, … TSU President F. Dominic Dottavio recognized in a March 11 open letter that while TSU does not endorse the play, and while he personally found it “offensive, crude, and irreverent,” TSU, as a public university, was “legally bound to allow the student production to go forward.” Dottavio further wrote:

We have had many conversations with the Office of General Counsel for The Texas A&M University System and they have made it clear to us that this is an unambiguous freedom of speech (First Amendment) issue. The Supreme Court of the United States has consistently held that public universities may not engage in the sort of censorship that prohibiting this student’s project would involve. This concept was reaffirmed by the 2008 Higher Education Opportunity Act which stressed that students should not be intimidated, harassed, or discouraged from speaking out. Like every citizen of the country, the student who chose to direct excerpts from the play enjoys his right to free speech. This right is protected by law even if the speech is offensive to others. But, again, it is important to understand that this is not the university’s speech; it is the student’s speech.

When actions and words are particularly offensive, the freedoms we enjoy can often lead to lively debate. As an educator, I believe the debate should be conducted with civility and respect. That is exactly what I expect from our Tarleton family and that is what I have seen from the campus community.

Despite Dottavio’s plea for a civil debate, Mark [Holtorf], an assistant professor at TSU, told the Fort Worth Star-Telegram that the university’s drama department received threats which prompted the cancellation:

“We received so many threatening calls and e-mails today across campus, the numbers were staggering. One administrator received in excess of 800 e-mails. Our department received calls of a threatening nature. I could not guarantee the safety of my students. The administration was truly behind the academic exercise, but I could not justify the safety risk.”

In essence, then, the heckler’s veto seems to have successfully censored speech on campus in this instance, as security threats preempted protected expression. It is impossible for FIRE to know for certain if behind-the-scenes pressure from TSU administrators or elected officials like Lt. Gov. Dewhurst played some tacit role in the performance’s cancellation, but in any event, the show will not go on. [UPDATE: I originally trimmed this paragraph for space reasons, but decided to put it back in.]

This particular silencing of speech is difficult for FIRE to fight. Had President Dottavio or another TSU administrator buckled to political pressure and cancelled the performance on his own, the First Amendment violation would be clear as day …. But because the performance was an assignment for a class, and the decision to cancel this play and the others was made by the professor, First Amendment protections are not implicated in the same way. Generally speaking, a professor enjoys a great deal of pedagogical deference to control classroom speech, and for the most part may conduct class as he or she sees fit….

[Nonetheless, t]hat the performance was cancelled because of threats of violence is a deeply depressing development for respect for the First Amendment in Stephenville, Texas, where TSU is located. If TSU community members, local citizens, and even the state’s elected officials don’t understand that (1) the First Amendment exists precisely to protect speech that challenges widely held presumptions about politics, religion, and other issues of the day and (2) the answer to speech with which one disagrees is more speech, not violence or censorship, then the phenomenon we here at FIRE call “unlearning liberty” is advancing faster and further than we feared….

It’s incredibly disappointing when our fellow Americans threaten violence and shout down those with whom they disagree rather than choose to engage in rational debate and accept the wonderful fact that in this country, unlike so many others, each citizen is free to speak his or her mind.

FIRE has more; a sad occasion indeed. For more on a similar incident, in which FIRE condemned a university that tried to suppress a parody of The Passion of the Christ, see here. For more on thuggery suppressing free speech, see far too many other examples, such as this one.

The Foundation for Individual Rights in Education reports:

Duke University’s Women’s Center has canceled an event about motherhood because the sponsor was engaging in pro-life expression elsewhere on campus. A Women’s Center representative told Duke Students for Life (DSFL) that “we have a problem” and an ideological “conflict” with the event, which was supposedly canceled to protect Duke women from encountering the event during the group’s “traumatizing” pro-life “Week for Life.” …

As part of a “Week for Life” series of events held at Duke over March 15-19, DSFL had reserved a Women’s Center space for a “Discussion with a Duke Mother” on March 18. A Duke student and mother was to speak about motherhood and the challenges of being in both roles. But the day before the event, the reservation was abruptly canceled in a voicemail to the group.

Meeting with the group on March 18, Duke Women’s Center Gender Violence Prevention Specialist Martin Liccardo said that because the event was associated with the Week for Life and DSFL, the event could not be held at the Women’s Center.

Liccardo told the group that the prospect of holding a pro-life event in the Women’s Center during Week for Life was too upsetting for some students: “We had a very strong reaction from students in general who use our space who said this was something that was upsetting and not OK. So based on that, we said, OK, we are going to respond to this and stop the program.” …

Oh, yes, and the Women’s Center “ascribe[s] to a broadly defined, fluctuating and inclusive feminist ideology that welcomes discordant viewpoints from varied experiences.” I guess this must be one of those fluctuations away from welcoming discordant viewpoints.

Duke is a private university, and is not bound by the Free Speech Clause. (That isn’t changed by Duke’s acceptance of government money.) But it is a university that claims it supports “freedom of inquiry and the free exchange of ideas” as “essential for the fulfillment of the university’s mission,” and we should hold it responsible for such blatantly viewpoint-based and narrow-minded exclusions of “discordant viewpoints” (even when the exclusion is just from one particular building).

David French, with whom I’ve been having a very enjoyable discussion about this case, posts further on the subject:

I want to focus my response on one item [from Volokh's previous post] — a point that I believe to be absolutely critical not just to the legal analysis but also the equities of the case. In response to my question, “What conceivable state interest exists in requiring open membership by expressive organizations?” Professor Volokh writes:

The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which … subsidizes … racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)

But isn’t Title VI aimed squarely at invidious discrimination? By its terms it’s limited to the identity-based categories of race, color, and national origin. Is it invidious discrimination for expressive organizations to ask that their members and officers agree with the group’s mission and conduct themselves accordingly? I think it’s a mistake to equate such commonsense, mission-based “discrimination” with invidious racial discrimination. Of course, that doesn’t mean the individuals don’t get their feelings hurt when they’re excluded from organizations, but that doesn’t provide a pretext for state action.

One of my favorite examples of these kinds of real-world controversies is an old one from a private school, Central College in Iowa. There, a Christian group asked their president to step down after he “came out of the closet” and stated that he not only didn’t agree with the organization’s beliefs regarding sexual morality; he also didn’t even consider himself a Christian (I advised the Christian group in the case). The student was enraged when he was asked to step down, but — honestly — did he have a reasonable expectation that he should be permitted to lead? Is it invidious discrimination for a Christian student group to ask that its leaders be Christian?

As an aside, while the current debate is centered around the ability of groups to exclude based on sexual-conduct rules and beliefs regarding sexual conduct, not all religious disputes deal with sex. Under the Ninth Circuit’s ruling in Martinez, the university would find itself in the middle of discrimination complaints based on the finer points of theology, if — to take from a real-world example — a student group had a dispute over the doctrine of justification. Or what if a student group wanted to expel a malicious Fred Phelps-type pseudo-religious lunatic? Is it really the role of the university to step in and tell CLS that they have to keep such malignant individuals in their midst?

Even further, where is the state interest in forced inclusion when excluded individuals have the right to form competing student groups, seek student-fee funding, and gain access to facilities? In other words, they have the right to confront what they perceive to be bad speech with their own, better speech?

Regardless of the framework for deciding Martinez — whether it’s the Seventh Circuit’s Healy-based associational analysis, the Ninth Circuit’s forum analysis, or something else entirely — the question of state interest will come up. And at that point, CLS can rely not just on common sense, but on a long line of Supreme Court precedent acknowledging (and protecting) the right of private organizations to form around shared beliefs and to enforce rules that protect the integrity of their message.

The bottom line? There’s a qualitative legal and moral distinction between invidious racial discrimination and a religious group’s asking that its members share the groups’ religious beliefs. I believe (and hope) the Supreme Court will see (and recognize) that distinction.

It seems to me that Title VI wasn’t limited to “invidious” discrimination in the sense of discrimination motivated by hatred, hostility, or a desire to harm. An Armenian-American organization, for instance, that only benefits Armenian-Americans — not because its managers dislike others but because they feel a special concern for the welfare of their own group — would be covered. It may well be that, especially in 1964, most instances of race, color, and national origin discrimination were motivated by hostility; but certainly not all were, yet the law covered discrimination generally, without any special inquiry into its motivation. (This was in some measure modified by Bakke‘s interpretation of Title VI in 1978, but even after that proof of hostility is not required for Title VI to apply.) Likewise, Title IX’s extension of Title VI principles to many forms of sex discrimination applies to discrimination that isn’t motivated by hatred, hostility, or a desire to harm.

Likewise, it seems to me that there is an eminently conceivable, and legitimate, state interest in denying government funds to groups that discriminate based on religion, sexual orientation, and such, even when the discrimination is “commonsense” and “mission-based.” It is reasonable and legitimate for the state to say that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion — even noninvidious fashion — which subsidizes religious or sexual orientation discrimination. And this is so even though some of the applications of this prohibition would apply to discrimination that isn’t motivated by hatred, hostility, or a desire to harm, but is itself commonsense and mission-based. The government may choose not to subsidize the exercise of the right to discriminatory expressive association, even when the discrimination is perfectly well-motivated, just as the government may choose not to subsidize electioneering or substantial amounts of lobbying, even though such electioneering or lobbying may be perfectly well-motivated.

As I’ve said before, I think the decision to completely exclude groups that discriminate from subsidies is unwise, for some of the very reasons that Mr. French gives. I think universities should allow university-funded groups to discriminate in ways that further their missions, especially based on religion (which as an ideology is especially important to maintaining certain groups’ mission) but also based on sexual orientation, race, sex, and the like. Allowing this would likely actually enhance the options available to students, and enhance the intellectual diversity of the marketplace of ideas in universities. But that I would make a certain choice doesn’t make the alternative choice on the university’s part inconceivable or illegitimate.

Finally, if one is using the broader definition of “invidious” to mean “offensive” or “objectionable,” the result is the same: A state may reasonably take the view that it’s offensive or objectionable for public funds, to which taxpayers and students of all religions and sexual orientations contribute, to be spent in any fashion which subsidizes religious or sexual orientation discrimination, even though Mr. French and I might not see it as offensive or objectionable (for instance for the reasons that Mr. French gives.

David French of the Alliance Defense Fund responds further to my posts about Christian Legal Society v. Martinez. I much appreciate David’s thoughtful reactions on this, and I’d like to continue the conversation.

Here’s David’s argument slightly abridged:

By treating this case as a “government benefits” case, I think Eugene is missing a few vital things. First, let’s not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is “peculiarly a marketplace of ideas” that if closed will cause our culture to “stagnate and die.” In fact, it’s hard to think of a single case where the Supreme Court has decided against student free speech or student access to forums — from Healy (student-organization recognition), to Widmar (religious groups’ access to facilities), to Rosenberger (access to funds), to Southworth (in which the court upheld an otherwise-unconstitutional mandatory student-fee scheme in part because it bought the argument that the scheme helped nurture free speech on campus).

The Court has even taken the rather unusual step of excluding (Garcetti, for example) universities from the scope of otherwise speech-restrictive decisions. The following language from Rust v. Sullivan (which upheld the so-called abortion “gag-rule”) is illustrative: “We have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” (Emphasis added.)

With language that sweeping and decisions that consistent, I would say that it’s an open question as to whether the access to facilities by expressive associations could even be considered a “government benefit” as opposed to a “right” in the conventional sense.

Second, I think Eugene dramatically minimizes the impact of Healy. Here we have the one Supreme Court case analyzing student organization recognition, and the access to facilities and other university resources in question was not seen as a denial of benefits but an abridgment of the associational right itself. Let’s go back to the quote that Eugene and I keep throwing at each other:

There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes. Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper.

Of course, the Healy Court did not deal with nondiscrimination policies. Had they decided the case on that basis, there’d be no need for the Court to weigh in on Martinez. However, I think Eugene does glide a bit over the university’s grounds for excluding SDS from campus. Yes, the university denied them because of the group “openly repudiates the college’s dedication to academic freedom.” But how? [Discussion of how SDS chapters at other campuses had been responsible for violent disruptions, and how the local SDS chapter didn't agree to eschew violence, omitted. -EV] What’s the justification for denying free association in this case? Is it anything as compelling as preventing violence and campus shutdowns?

And this brings me to my third major point. The justification is not “protecting students from discrimination on the basis of race, gender, sexual orientation, religion, veteran status, disability, etc. etc. etc.,” because CLS has not mounted a facial challenge to the nondiscrimination policy. The challenge is quite simply to the application of the policy in such a way that it prevents a Christian group from reserving voting membership to those who believe in its statement of faith and seek to conform their behavior to the mandates of Biblical Christianity. Broadly, it’s a challenge to a policy that would prevent any organization from reserving leadership or voting membership to those who believe in the mission of the organization and conduct themselves accordingly.

What conceivable state interest exists in requiring open membership by expressive organizations? At its core, this case is nothing more and nothing less about the state using its nondiscrimination policy (a policy that was in part designed to protect religious expression) to exclude an organization it does not like. I hate to sound like a broken record, but I have to go back once again to Healy: A government actor cannot compel indirectly a result that it is constitutionally prohibited from achieving directly. 408 U.S. at 183.

Here’s where I disagree with David on this:

Continue reading ‘Should Access to Public University Property and Funding Be Treated Differently from Access to Other Public Property and Funding?’ »

David French writes at National Review Online:

I don’t have time to detail Eugene’s argument in all its complexity, but the one sentence summary is: Public universities are not constitutionally compelled to provide government benefits (like room access and student fee funding) to “discriminatory” Christian student organizations…. [Here is] his post’s primary shortcoming:

Eugene cites two cases, Boy Scouts of America v. Dale and Rosenberger v. Rector and Visitor of the University of Virginia as foundational to the fraternity’s position. Yet this is incomplete. Boy Scouts (holding that the Scouts could exclude scoutmasters who were openly engaged in homosexual behavior) and Rosenberger (holding that religious student organizations were entitled to viewpoint-neutral access to student-fee funds) are certainly important, but they rest on a foundation of other cases, most importantly Healy v. James (reversing a university’s decision to deny recognition to Students for a Democratic Society) and Widmar v. Vincent (holding that universities had to provide religious student organizations with equal access to university benefits).

Healy is particularly crucial, because it places the discussion of student-organization associational rights in the right context — the university context. I think Eugene’s key flaw is to treat the university environment and university student-organization system as essentially like any other government program, when they most assuredly are not. The Healy court got this, holding that there was a free-association interest in student-organization recognition: “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.” On campus, recognition typically equates with existence.

Everything flows from this initial determination. Once the free-association right locks in, the panoply of associational rights attach — including the now well-established right to expressive organizations to exclude those who do not share the organization’s mission or message. In fact, in Christian Legal Society v. Walker, a similar case, the Seventh Circuit found Healy to be “legally indistinguishable” and then went on to apply Dale to decide the precise associational issue.

On the university campus (this qualifier is critical), the Supreme Court has clearly established the following: Student organizations have a free-association right in recognition; religious student organizations have a right to access university facilities; and religious student organizations have a right to access student-activity-fee funds. On and off campus, expressive organizations have a free-association right to exclude those who don’t share their beliefs.

I’ll have more to say on this topic when I have time, but it is simply wrong to phrase this as a “government benefits” case. It is a governmental obligation to provide facilities access to Christian student groups (Widmar) once they’ve opened those facilities for use by other groups. Similarly, it is a government obligation to fund religious student groups from mandatory student activity fees (Rosenberger, Southworth) if other expressive organizations are funded. Moreover, the Supreme Court has held that student activity fees are a fund that belong to the students — and not “government funds” in the classic sense.

What universities have done is defy their obligations by creating two tiers of access — a right of access for those groups that comply with expansive nondiscrimination policies (including policies that prohibit Christian groups from reserving leadership for Christians, thereby destroying their ability to guarantee the integrity of their message) and the leftovers for everyone else, or even no access at all if “recognized” groups have reserved all space (or taken all the funds). This action essentially overrules Healy, Rosenberger, and Widmar through the back door.

Once again, this (relatively) short post doesn’t address all of Eugene’s comments, so there will be more to say. However, he did ask that any critics address two questions he raised: Can a university require a democratic process for student organizations? No, it cannot. And can it require student leadership? Perhaps, but only because courts have long recognized a distinction between the free-speech rights of students versus off-campus speakers or groups, with the forum created for the students and student groups. See, for example, Widmar.

I look forward to further discussion, but I would submit that by phrasing this as essentially a “government benefits” case, Professor Volokh is missing the point. Student-organization recognition isn’t a benefit; it’s (as the Supreme Court has said) a right.

I much appreciate Mr. French’s response, but here’s why I don’t think it quite works:

1. The government of course has no obligation to fund student groups, or to give them access to university classrooms, bulletin boards, and the like. In that respect, such access is indeed a “government benefit.”

2. Of course, Rosenberger and other cases (including Southworth and Widmar) make clear that the government can’t discriminate based on viewpoint even in the distribution of government benefits, once a limited public forum is created. It may also be in some measure restricted in its imposition of content-based but viewpoint-neutral rules, but that’s not important here. I explained in another post why the non-discrimination rule isn’t viewpoint- or content-based.

3. What about Healy? Healy was also a case in which a group was excluded largely because of its viewpoint. (The group was excluded because the University President “found that the organization’s philosophy was antithetical to the school’s policies,” and “that approval should not be granted to any group that ‘openly repudiates’ the College’s dedication to academic freedom.”) The Court did say that, “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes. Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper.” But as the Court has since made clear, student groups don’t have a general right to use campus facilities (such as rooms within university buildings) or bulletin boards. They at most have a right to not be discriminated against based on the viewpoint of their speech (and perhaps in some situations based on the content of their speech) once the university decides to open up such facilities to student groups generally.

4. Nor does Healy suggest that groups have a right to what one might call “associational-choice-neutral” access to property that the university has opened to student groups, much as groups have a right to viewpoint-neutral access to such property. In fact, footnote 11 of Healy expressly says that content-neutral nondiscrimination rules were not at issue in that case:

The standards for official recognition require applicants to provide a clear statement of purposes, criteria for membership, rules of procedure, and a list of officers. Applicants must limit membership to “matriculated students” and may not discriminate on the basis of race, religion or nationality. … Petitioners have not challenged these standards and their validity is not here in question.

So whether the matter arises as to funding or room access at public universities, or funding or room access in other government-owned institutions, the result is the same: The First Amendment doesn’t stop the government from making such benefits available only to groups that don’t discriminate based on race, religion, sexual orientation, and the like.

One more item about the Christian Legal Society v. Martinez case: Some people argue that applying nondiscrimination conditions to student religious groups (alongside other groups) as a condition of funding violates the underlying purpose of the benefit program. Universities say they fund and provide space for student groups to “facilitat[e] the free and open exchange of ideas by, and among, its students” (I quote here Board of Regents v. Southworth). Given that the effect of the nondiscrimination condition is to limit religious groups’ ability to freely promote the ideas (by raising the risk that the groups won’t be able to limit their officers or voting members to those who share the group’s core ideas), isn’t the condition inconsistent with the purpose of the program (and the argument goes, therefore unconstitutional)?

The answer, I think, is that when the government is subsidizing behavior, it is entitled to try to serve multiple interests. For instance, why does the government provide a tax exemption to deductions for nonprofits? Because it thinks that this enriches civil society and (as to nonprofits that speak) public knowledge and public debate – including by broadening the spectrum of viewpoints advocates by private organizations. Yet the government is entitled to serve both that interest and the interest in not requiring taxpayers to subsidize electioneering and lobbying (or at least a substantial amount of lobbying), which is why the government may extend the tax exemption only to donations to groups that don’t electioneer or engage in substantial amounts of lobbying.

Nor is there any need for a very strong, overriding reason for the exclusion, I think; the government is entitled to choose what it subsidizes and what it doesn’t. Likewise, the government can choose to partly subsidize many medical procedures (including ones that are necessary simply for comfort, rather than for preservation of life or prevention of serious injury), but choose to exclude abortions. There’s no need for a very strong, overriding reason for that exclusion, either, because the government can choose to try to serve two interests at once – helping people get medical procedures while making sure that taxpayer money (or taxpayer-purchased property) isn’t used for performing abortions.

Likewise, it seems to me that universities are entitled to provide a subsidy in order to broaden the spectrum of viewpoints advocated on campus by private organizations, while at the same time ensuring that the subsidy ends up benefiting students without regard to race, religion, sexual orientation, and the like (and not just in the aggregate but for each particular group). I think that’s an unwise decision, partly because the second interest does in some measure undermine the first. But it seems to me quite constitutional.

And the answer to what government interest is served here is the same as that given by President Kennedy in supporting Title VI of the Civil Rights Act: That money gathered from taxpayers (or students) without regard to race and the like is to be distributed only to groups that admit all students without regard to race and the like. That interest is legitimate, and therefore constitutionally sufficient when it comes to choosing which groups get government funding, even if I think that elevating it over rival interests is unwise in this context.

David and others have argued that university policies that deny benefits to groups that discriminate based on religion are unconstitutionally based on the groups’ viewpoint, when applied to religious groups. Other groups, the argument goes, are allowed to exclude people who don’t share the group’s ideology: The environmentalist group may exclude anti-environmentalists, and the gun rights group may exclude people who support gun bans. But the Christian group can’t exclude non-Christians, and that’s discriminatory against groups that espouse Christian viewpoints.

But I don’t think that constitutes viewpoint discrimination, or even content discrimination. The no-religious-discrimination condition may have a disparate impact on religious groups – it may burden them much more than it burdens nonreligious groups – but disparate impact is not enough to make a facially content-neutral rule into something that’s based on the targets’ viewpoint.

As I argued in my law review article on the freedom of expressive association and government subsidies, the test for content discrimination is whether a rule is justified with reference to the content of the speaker’s speech. A no-religious-discrimination condition is likely not justified by the content of the groups’ speech. Rather, it’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies.

I think that judgment is not persuasive as a moral or practical matter, when applied to religious groups. But it’s a judgment that universities can reasonably make, and that is familiar from antidiscrimination law more broadly, since antidiscrimination law likewise bans discrimination based on targets’ religion and not discrimination based on targets’ other ideologies. And the judgment is not based on the content of speech, or on the viewpoint of speech, or on the religiosity of the regulated groups’ practice: It focuses on the prospective members’ beliefs, not on the regulated groups’ speech or beliefs.

Now of course the university rule, while applicable to groups without regard to their content or viewpoints, does single out a certain kind of exercise of freedom of association rights, and deny it funding. But in the absence of discrimination based on a speaker’s viewpoint, the selective denial of funding to the exercise of certain constitutional rights is permissible (see my original post): The government may fund many medical procedures but not abortion, may give tax exemptions for donations that go to many kinds of speech but not electioneering, and so on.

That the government may not ban an activity doesn’t mean that it has to include it in its subsidy programs. It just can’t discriminate based on speakers’ viewpoint in awarding subsidies; and, as I argue above, the nondiscrimination rules (if evenhandedly applied) don’t discriminate based on speakers’ viewpoint.

The Court has agreed to hear Christian Legal Society v. Martinez, and to decide whether public universities may open up various student group benefits — funding, access to classrooms, and the like — only to groups that don’t discriminate based on race, religion, sex, sexual orientation, and the like.

1. To begin with, I should say that I agree with the Court’s Boy Scouts v. Dale decision: Private groups often do have the First Amendment right to discriminate in choosing their leaders (and their members, though Dale didn’t focus on that), when barring such discrimination would interfere with the groups’ ability to spread their message. I also think that, as a policy matter, public universities should leave groups — even those they support — free to discriminate based on criteria that are relevant to the group’s mission, such as religion, sexual orientation, and, where appropriate, race and sex. Allowing such groups would do more for the cause of genuine diversity of perspective than would any attempt to force integration of those groups.

2. But the question is not just whether the groups have a constitutional right to expressive association — it’s whether the government has a constitutional obligation to support this right. And there, I think, the answer is no.

Let’s set antidiscrimination rules aside for a moment, and consider a university rule that gives benefits only to groups that are run by students. I take it that this would be pretty clearly constitutional, because it involves the university’s preserving university resources for the benefit of students. Yet of course groups have a First Amendment right to select nonstudents as their leaders, and may have good reason to do so. They have a constitutional right to associate — but not a constitutional right to get government benefits for their association.

Or consider a university rule that requires student groups to be democratically run, with each member being given a vote. That too, I take it, would be constitutional. Groups have a First Amendment right to organize themselves in other ways, but a public university may choose to subsidize only democratically run groups.

3. Likewise, let’s turn to fields other than expressive association. Though the Court has recognized the right to get an abortion, it has expressly held that states need not allow abortions in state-run hospitals. People have a constitutional right to send their kids to private school, but states may choose to fund only public schools. People have a constitutional right to spend money to elect candidates, and to lobby the legislature and the public, but the government may decline to subsidize such activities using the charitable tax exemption. (Tax-exempt funds generally can’t be used for electioneering, or for a substantial amount of lobbying. You can find cites for this and most other legal assertions I make here in my Stanford Law Review article on this subject.) The government need not open its property for constitutionally protected solicitors of charitable contributions even when it opens it for leafletters.

So the government generally has no duty to subsidize even constitutionally protected activity, and may even single out some constitutionally protected activity for special exclusion from government subsidies. Again, consider bans on performing abortions in state-run hospitals, or on using tax-supported funds for electioneering. This goes a long way, I think, to concluding that the government need not subsidize groups that discriminate in their choice of leaders or members, just as it need not subsidize groups that choose to have nonstudents run them, and just as it need not subsidize abortions or electioneering.

4. How might antidiscrimination rules imposed by universities be different?

a. If the rules are themselves enforced unevenly — for instance if a Muslim student group is allowed to exclude non-Muslims but a Christian student group is barred from excluding non-Christians — then that would surely be unconstitutional. But I take it that the argument in favor of student groups’ right to discriminate goes beyond that.

b. Where it comes to generally available benefits for speech, the government must not discriminate based on the viewpoint of speech. It may discriminate based on content (recall again the limits on using tax-exempt contributions to advocate the election or defeat of a candidate), but not based on viewpoint: Consider the Rosenberger case, in which the Court held that a state university may not deny generally available benefits to religious newspapers — the Court concluded that this denial was viewpoint-based, because it treated speech expressing religious viewpoints worse than speech expressing secular viewpoints.

Yet a rule denying benefits to groups that discriminate in choice of members or leaders based on applicants’ race, religion, or sexual orientation restricts groups based on their actions — their denial of decisionmaking power or voting power based on certain criteria — and not based on their speech. If the university denied generally available funding to groups that advocate against homosexuality or against religious tolerance or some such, that would be a viewpoint-based exclusion of speech (even if it’s articulated as a ban on supposedly “discriminatory” speech, or as a ban on speech or conduct that creates a “hostile environment” for certain groups). But a rule that groups that get funding must not discriminate doesn’t turn on speech at all; it turns on conduct.

Of course, these antidiscrimination rules are motivated by university officials’ viewpoints. But all rules are motivated by their enacters’ viewpoints (if only the viewpoint that the rule would be a good idea); that can’t be the test for viewpoint discrimination. Likewise, the rules may interfere in some measure with some groups’ ability to spread their viewpoints. But lots of content-neutral restriction (and certainly content-based but viewpoint-neutral restrictions) interfere with some groups’ ability to spread their viewpoints, and may do so more for certain groups than for other groups. A ban on residential picketing, for instance, interferes with people’s ability to spread their viewpoints this way, and disproportionately affects those groups that would otherwise choose to use that medium. But the Court has held that the ban is content-neutral, and it’s certainly viewpoint-neutral.

c. Some people I’ve talked to acknowledge that a university may be free to require that all student groups admit all students, and open their offices to all students (subject, of course, to the requirement that the students be elected by their fellow group members). Such a rule, those people concede, would make sure that university-provided benefits are available to all students. But a rule that lets groups discriminate based on all sorts of things but not based on race, religion, sexual orientation, and so on, they argue, can’t be justified on these grounds.

That doesn’t strike me as persuasive. The notion that discrimination based on certain grounds (but not other grounds) shouldn’t be subsidized with government funds is pretty sensible: The government might reasonably choose to insist that all its funding be available to everyone equally, but it might also want to allow some forms of discrimination but not other forms. The principle that recipients of government funds should be free to discriminate on many grounds but not on race, religion, and the like strikes me as a constitutionally permissible principle for the government to adopt (and it is in fact the principle behind Title VI of the Civil Rights Act, just to give one historical example). I don’t see why universities should be put to the choice of either requiring all student groups to not discriminate at all or leaving them free to discriminate on all possible bases.

d. Might it be that rules that deny funding to groups that discriminate based on religion be special, when applied to a religiously themed student group limiting its membership or leadership? Such an argument would set aside rules related to race discrimination, sexual orientation discrimination, and focus on the fact that religion is an ideology. Other ideological groups, after all, are generally free to discriminate based on ideology; Objectivists might limit membership or officer positions to Objectivists, and the Sierra Club might limit membership or officer positions to environmentalists. Religious groups, the argument would go, should have the same right, and should thus be exempted from bans on religious discrimination, which to them are bans on the very same form of discrimination — discrimination based on the ideology the group was founded to convey — that nonreligious groups are free to practice. Perhaps the ban on religious discrimination is thus itself religiously discriminatory, and violates the Free Exercise Clause, because it denies the Christian Legal Society the same right that the Environmental Law Society possesses.

Yet I don’t think that such a position is consistent with Employment Division v. Smith, which concludes that generally applicable laws don’t generally violate the Free Exercise Clause. The ban on religious discrimination applies, both facially and in practice, to all groups, religious or otherwise. The Sierra Club is barred from discriminating against Jews for Jesus as much as the Jewish Legal Society is barred from discriminating against Jews for Jesus. True, the antidiscrimination rule has a more serious effect on religious groups than on nonreligious groups, because religious groups would derive more benefit from the ability to discriminate based on religious ideology. But any law that happens to prohibit a practice that some religious groups find important would have this effect. Peyote laws, for instance, have a more serious effect on religious groups that see peyote use as a sacrament than on most secular groups whose members may just want to experiment with peyote. Yet such a disparate impact, even when it substantially burdens a group’s exercise of religion, does not even render unconstitutional criminal prohibitions of practices. It surely wouldn’t bar the exclusion from benefit programs of groups that engage in those practices.

5. So my bottom line: I see the value of student groups that limit membership to those whose religion, sexual orientation, or even race or sex are in keeping with the group’s ideological purpose. I don’t think universities should deny funding to such groups. And I think those groups generally have a constitutional right to discriminate in their choice of leaders and members.

But just as the right to abortion, speech, or private education doesn’t yield a right to government funding of abortion, speech, or private education — and isn’t even violated by rules that expressly exclude abortion, certain subject matters of speech, or private education from generally available benefit programs — so the right to expressive association isn’t violated by rules that give benefits only to groups that organize themselves in a certain way. And while these conditions on funding would be unconstitutional if they discriminated based on the viewpoint of the groups’ speech, a ban on discrimination in selecting members or officers is a ban based on conduct, not on the viewpoint of the groups’ speech.

UPDATE: A request: I’m sure many of you take a different view, and I’d be happy to see it expressed in the comments. But if you do so, could you please also explain how you’d deal with a university’s decision to fund only groups that are run by students, or that operate democratically — and, if you reach a different result for those rules than you would for antidiscrimination rules, what you see as the constitutionally relevant distinction. Thanks!

A commenter (Tim) on an earlier thread raised an important objection to rules that bar religious discrimination by campus groups (including religious groups):

Imagine that anyone, regardless of religious belief, were allowed to become voting members of the “Christian Legal Society” or the “Muslim Students’ Association” or any other such group. What would stop people who disagreed with the group’s views from joining the group in large numbers, voting out the leadership, and then disbanding the group merely to silence them? Obviously, the students would have no meaningful right to free speech and association if this regime were allowed to stand.

Another commenter, EMB, responded:

I’ve seen this hypothetical argument made several times, but every time I wonder: are there any examples in the real world of this actually happening?

I can’t say how often these things happen, nor am I sure that anyone else can say it, either. But I do know of one case that involved that very fact pattern (though not at a university), and that was litigated all the way to the California Court of Appeal. The case is Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993), in which Scientologists were apparently trying to take over the Cult Awareness Network, which was hostile to Scientology. When they were refused admission, one sued, claiming the denial violated California antidiscrimination law; the court held that antidiscrimination law couldn’t apply here, and based its reasoning partly on CAN’s First Amendment rights to expressive association.

I think the California Court of Appeal reached the right constitutional result as to general bans on discrimination. I also think that, partly for this reason and partly for others, public universities should — as a matter of policy — allow ideological student groups to discriminate based on members’ ideology, and therefore allow religious student groups to discriminate based on members’ religious views. (I think that when it comes to the government as funder and as landlord, this policy is not constitutionally commanded; the government may choose to impose such antidiscrimination rules on student groups that it funds. But that’s a story for another post.)

The case is Christian Legal Society v. Martinez, and it could be an important decision on First Amendment law and government benefits more broadly. Its implications would quite likely also extend beyond on-campus student groups and also apply to tax exemptions and various other such schemes. I’ve written about the question in my Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006), and also in this post; I’m on the run now, but I hope to blog more about the subject this week.

From the Indianapolis Star, discussing this blog post (my backup version is here):

Some have called for [Purdue University professor] Bert Chapman to resign or be fired for his Oct. 27 posting, which laid out an argument that the cost for AIDS research and treatment should factor into the national debate over the acceptance of gays and lesbians.

“The most concrete way to protect the university’s reputation against academic dishonesty and mediocrity is for him to resign,” said Purdue senior Kevin Casimer, who is organizing a petition campaign against the professor.

“However, if Purdue administrators and faculty make a unified statement that (Chapman’s writings) are unprofessional and detrimental to Purdue’s reputation and not reflective of the university, the same effect might be made.”

Purdue officials say they have no plans to discipline Chapman, a library science professor who serves as the university’s government information and political science librarian.

“There are many things on the Internet that would be offensive to a lot of people but protected by the First Amendment,” said Purdue spokeswoman Jeanne Norberg. “The best response is to speak up, which is exactly what our students and some faculty are doing.” …

Note that Purdue is a public university, so that it indeed likely constitutionally barred from firing or otherwise disciplining Prof. Chapman for his speech. Private universities (even ones that get substantial government funding) are not bound by the First Amendment, but only by professional academic freedom principles and by contractual obligations under its tenure contracts (and other employment contracts). For more on this story, see this Inside Higher Ed column by Scott Jaschik.

From the Connecticut Post, apparently discussing this column (my backup version is here):

… The Fairfield Mirror …[, an] independent student publication[,] faces harassment charges before the school’s Student Conduct Board….

The controversy erupted over a satirical column in the Sept. 30 edition of The Mirror that poked fun at female students who agree to one-night stands. The “He Said” column described a female’s “walk of shame” leaving a male’s dorm, and used words like “pounding” and “hood rat” to talk guys through the morning after consensual sex….

The student editors [of the newspaper agreed, in response to complaints and a threat of being deprived of school funding,] to make changes to ensure editorial content in the paper has no divisive, offensive language that could result in emotional or physical harm to anyone….

If anyone can point me to a copy of the new Fairfield newspaper policy, I’d love to see it; if it is as quoted, this sounds like an appallingly broad policy for a newspaper to agree to, or for any university to demand. The one reference I could see to “divisive, offensive” in the Mirror archives, here, is an assurance only as to the “Coffee Break” section — still troubling, but more limited in scope. On the other hand, it said nothing about “emotional or physical harm,” so perhaps some other policy is out there.

Note that Fairfield University is a private Jesuit university, and therefore not bound by the First Amendment. Nonetheless, it is apparently trying to apply general “sexual harassment” principles, presumably on the theory that the newspaper column created a “hostile, abusive, or offensive educational environment” for the complainants and for reasonable readers based on the readers’ sex. And this could equally be applied under many university speech codes, including public university speech codes. What’s happening to the Fairfield newspaper is an indicator of what might equally happen at public universities as well, so long as those universities believe (as I’ve heard many people argue) that “sexual harassment”-based speech codes are constitutional.

Most of the university student speech debate has focused (rightly, in my view) on restrictions that apply to student speech outside class — in student conversations, demonstrations, newspapers, flyers, and so on. But Harrell v. Southern Oregon University (Oct. 30) involves in-class speech, albeit in an online classroom. (Here’s the magistrate judge’s decision, which the decision I cited above adopts.)

The Southern Oregon University Code of Student Conduct prohibits

Disruption, obstruction or interference with educational activities in classrooms, lecture halls, campus library … or any other place where education and teaching activities take place including, but not limited to, talking at inappropriate times, drawing unwarranted attention to self, engaging in loud or distracting behaviors, displaying defiance or disrespect of others, or threatening any University student or employee.

Peter Harrell was taking some online classes, in which the class discussion took place through an online discussion board. He was at first apparently admonished by his instructor for disrespectful statements, and then eventually disciplined by the university (by being put on probation) for such statements.

The opinions aren’t rich in details about the statements, and the Complaint highlights some of the statements in a way that leaves them unreadable. But the statements appeared to be statements to classmates such as “clearly you haven’t bothered to read the rest of the board on this topic” and “but you clearly haven’t bothered to do your reading. Feel free to post some concrete information on your own, however.” Those are probably not seen as especially rude by the standards of online discussion generally, but are in my view quite rude but not extremely rude by the standards of in-class discussion. (I would, for instance, promptly admonish a student for making such statements in my classroom.)

So Harrell sued, claiming that the Code provision was facially unconstitutional — vague and overbroad — and that it was unconstitutional as applied to him. The court said no, specifically because the provision was limited to classroom speech. In context, the magistrate judge concluded, and the district judge agreed, that the policy is not vague because in context the ban on “disrespect[ful]” speech is limited to “disruption or interference with classroom activities.” And so read, the policy is not overbroad, because of the university’s legitimate power to restrict speech in the classroom (especially because the speech wasn’t “core religious [or] political speech,” and because “it attempts not to limit the ideas of an individual but the way in which an individual interacts with others, unrelated to political speech”).

Here’s my thinking on the matter:

1. Speech in university classes is rightly much less constitutionally protected than speech outside class. An obvious example is that students generally may not speak at all unless called on by the professor. But beyond that, the professor may choose to limit discussion by subject matter, by perceived quality, and even by viewpoint. He might, for instance, cut off a student who’s going off-topic (and avoid calling on habitually off-topic students). He might specifically ask for students to make an argument in favor or against a particular result (and if a called-on student doesn’t comply with this, he may cut the student off). He might prefer to call on students who, in his experience, have what he see as higher-quality things to say. And he might cut off even on-topic arguments that he sees as expressing incorrect or logically unsound viewpoints.

2. Professors also rightly exercise this power as to rude speech. I think I’ve either never or almost never encountered student rudeness in the classroom. (I vaguely recall one possible hissing incident, which was condemned at the time, but it would have been so long ago that I’m not even sure that it happened when I was a professor or a student.) But if someone did say something rude in class, I would cut the student off, and admonish him. And if this happened often enough, I’d stop calling on the student until he gave me assurances that he’d be more polite.

This is in part because classroom discussion is itself a teaching tool, a kind of orchestrated speech product that is provided for the benefit of listeners as well as speakers. The professor is the conductor of the performance, or the editor of the aggregate product; he deliberately uses students’ own speech, but in a way that’s channeled by his own editing decisions. And if students are rude to each other, the result will generally be a lower quality and less effective class discussion, which is to say that the professor won’t be able to generate as effective a speech product as he would have if he had prevented the rudeness.

Much as this justifies, in my view, editing of online discussion lists (and comment threads), it even more justifies professor-as-editor/conductor control of classroom discussions. And this necessarily includes content- and viewpoint-based controls, though in imposing such controls the professor himself should be subject to constraints — but likely not judicially enforceable constraints — of fairmindedness, open-mindedness, and politeness.

3. So far, though, all that I’ve discussed chiefly involves restrictions imposed by the professor, where the sanctions consist only of (1) the professor’s cutting off a student comments, (2) the professor’s not calling on a student in the future, (3) the professor’s publicly or privately admonishing the student, and (4) the professor’s grading down the student for in-class participation, in classes where participation is graded (a process that likewise necessarily involves content-based judgment, and even in some measure viewpoint-based judgment). The university disciplinary process only needs to be invoked, I think, when the student refuses to accept the professor’s in-class restrictions, and talks when not called on.

4. It’s more troubling, however, when disciplinary sanctions are possible not just for talking out of turn — or continuing talking after the professor has tried to cut one off — but for saying things that “disrupt[], obstruct[], or interfere[] with educational activities … including … displaying … disrespect of others.” For instance, consider one of the examples given by the University of Michigan of sanctionable conduct, in the speech code struck down by Doe v. University of Michigan: “A male student makes remarks in class like ‘Women just aren’t as good in this field as men,’ thus creating a hostile learning atmosphere for female classmates.” In fact, at the University of Michigan, “At least one student was subject to a formal hearing because he stated in the context of a social work research class that he believed that homosexuality was a disease that could be psychologically treated.”

Likewise, another “incident involved a comment made in the orientation session of a preclinical dentistry class. The class was widely regarded as one of the most difficult for second year dentistry students. To allay fears and concerns at the outset, the class was broken up into small sections to informally discuss anticipated problems. During the ensuing discussion, a student stated that ‘he had heard that minorities had a difficult time in the course and that he had heard that they were not treated fairly.’ A minority professor teaching the class filed a complaint on the grounds that the comment was unfair and hurt her chances for tenure. Following the filing of the complaint, the student was ‘counseled’ about the existence of the policy and agreed to write a letter apologizing for making the comment without adequately verifying the allegation, which he said he had heard from his roommate, a black former dentistry student.” And the court held the speech code unconstitutionally overbroad in part because of its effect on in-class speech:

Doe said in an affidavit that he would like to discuss questions relating to sex and race differences in his capacity as a teaching assistant in Psychology 430, Comparative Animal Behavior. He went on to say:

An appropriate topic for discussion in the discussion groups is sexual differences between male and female mammals, including humans. [One] . . . hypothesis regarding sex differences in mental abilities is that men as a group do better than women in some spatially related mental tasks partly because of a biological difference. This may partly explain, for example, why many more men than women chose to enter the engineering profession.

Doe also said that some students and teachers regarded such theories as “sexist” and he feared that he might be charged with a violation of the Policy if he were to discuss them. In light of the statements in the Guide, such fears could not be dismissed as speculative and conjectural. The ideas discussed in Doe’s field of study bear sufficient similarity to ideas denounced as “harassing” in the Guide to constitute a realistic and specific threat of prosecution.

All of these statements, and many more like them, could be seen by university administrators as “displaying … disrespect of others” and thereby “disrupt[ing], obstruct[ing], or interfer[ing] with educational activities.” Nor does the magistrate judge’s supposed clarifying construction, which is that the “disrespect” ban only “prohibits disrespect that would interfere with educational activities,” solve the problem — in the university’s view, the expression of such ideas in class might well “interfere with educational activities” in some measure.

5. It therefore seems to me that it’s much better to leave control of in-class speech to the professor, backstopping the control with administrative sanctions only when the student talks out of turn, or otherwise disobeys the professor’s clear prohibition on speaking. Such a policy would leave the professor with the flexibility to constrain rudeness — and distractions of all sorts — and orchestrate class discussion in the way he sees as most pedagogically effective. But at the same time, it would pose far less of a deterrent effect than would a policy under which students could be disciplined by the university simply for saying certain things in class. (There would still be a substantial deterrent effect on certain statements, especially in classes where class participation is grade; but some such deterrent effect is inevitable.)

The question is whether university discipline for the content of in-class speech (not just passive speech as armbands, but active participation) — even speech that is seen as “disrespect[ful]” and therefore “disrupt[ive]” — is (1) unconstitutional, likely because of its extra deterrent effect on in-class speech, or (2) a bad idea but constitutional, because the government has unquestioned authority to restrict in-class speech through its agent the professor (who may well be a government agent for his teaching, though not for his scholarship) and is therefore free to restrict such speech through the administrative sanctions process as well. I tentatively lean towards item 1, and I do think that Doe v. University of Michigan supports that. But it strikes me as a difficult question.

This morning NPR ran a story on Yale University’s decision to force the Yale University Press to remove all depictions of the prophet Muhammed, including several controversial Danish cartoons, from Jytte Klausen’s book The Cartoons that Shook the World.  As had already been reported, the University’s decision was based, in part, on various outside experts on national security, terrorism, and Islam who beleived republication of the cartoons could spark further violence.  What I had not previously known, but NPR reported today, is that the experts consulted by Yale University were not asked to read the book, only to comment on the cartoons.

just a few weeks before publication, Yale University, which owns the Yale Press, mounted a second review. The university asked some 20 scholars, counterterrorism officials and national security experts to asses the risk of more violence if copies of the cartoons were included in the book.”It was fairly overwhelming that the people who knew the most about this kind of situation said ‘Don’t do it,’ that this was likely to provoke violence,” Yale Press director John Donatich said. . . .

The university told Yale Press to eliminate the cartoons from the book, along with all other images of Muhammad. And Klausen was told she’d have to sign a nondisclosure agreement if she wanted to read the experts’ comments. She declined to do so. But she says she was even more dismayed to learn that the panel had not read her book.

“My first reaction was that it was stunningly similar to what happened during the conflict itself,” said Klausen. “I disagreed with the experts’ advice. I felt that had the experts read my book, they would not have given the advice they produced.”

So we are clear: A prominent University censored content from a book based on the opinions of experts who had not read the book in question.

Peter Berkowitz takes up the argument over Yale and, by extension, the rest of the American academy, concerning Yale University Press’s shameful censorship of a book on the Muhammed cartoons – with his usual careful argumentation and coherence.  Kudos to Peter; here in the WSJ.

So reports the Foundation for Individual Rights in Education, discussing the case we blogged about in May. Here are some excerpts from FIRE’s summary; there are more details, and pointers to the relevant documents, here:

[A] student threatened with punishment for attempting to form a gun-rights group at Community College of Allegheny County (CCAC) is finally allowed to distribute pamphlets about the group on campus. The college has also rescinded its unconstitutional policy demanding “prior written approval” for “personal contact with individuals or groups related to non-sponsored college material or events.” … Christine Brashier, who wanted to form a chapter of Students for Concealed Carry on Campus (SCCC), was told that her pamphlets were unacceptable “solicitation” and that any further efforts would be considered “academic misconduct” ….

After FIRE took Brashier’s case public in May, generating national news coverage, CCAC attorney Mike Adams finally replied to FIRE. Adams assured FIRE that Brashier did not face any disciplinary action and that she did have the right to try to form a SCCC group, but he reported that CCAC would not budge from its unconstitutional policy of prior review of materials….

But, FIRE reports, the policy has finally been changed; “Michael J. Rinaldi, a FIRE Legal Network attorney in the Commercial Litigation Practice Group at Drinker Biddle & Reath LLP in Philadelphia, … successfully pressed CCAC to allow not only Brashier but all CCAC students to exercise their fundamental rights on campus.” Good work.

Disclosure: I will be a keynote speaker at FIRE’s Tenth Anniversary event this month, but my enthusiasm for FIRE’s work of course long preceded that invitation.