The case stems from the incident in which a professor in a speech class refused to grade a student's presentation, apparently because of the religious nature of the student's presentation, the student's expression of opposition for same-sex marriage in the presentation, or both. (The professor apparently also called the student a "fascist bastard" in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to let the student finish the presentation.)
But the injunction, in Lopez v. Candaele, focuses on the policy, not the incident, and concludes that the policy is likely unconstitutional. Here's what the court says, in most relevant part (some paragraph breaks added):
The definitions section of the Policy, Section 15003, states:
Sexual harassment is defined as: Unwelcome sexual advances, requests for sexual favors, and other verbal, visual or physical conduct of a sexual nature, made by someone from or in the workplace or in the educational setting, under any of the following conditions: ..[.] (3) The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile or offensive work or educational environment....
Two websites, one maintained by the [Los Angeles Community College] District and the other by [Los Angeles City College], purport to expound upon the Policy. The District's website states that sexual harassment can include "[d]isparaging sexual remarks about your gender[, r]epeated sexist jokes, dirty jokes or sexual slurs about your clothing, body, or sexual activities[, and d]isplay of sexually suggestive objects, pictures, cartoons, posters, screen savers[.]"Moreover, the site states, "If [you are] unsure if certain comments or behavior are offensive do not do it, do not say it... . Ask if something you do or say is being perceived as offensive or unwelcome. If the answer is yes, stop the behavior." LACC's website states that "[s]exual harassment can be intentional or unintentional." The website further states:
It is important to be aware that sexual remarks or physical conduct of a sexual nature may be offensive or can make some people uncomfortable even if you wouldn't feel the same way yourself. It is therefore sometimes difficult to know what type of behavior is sexual harassment. However the defining characteristic of sexual harassment is that it is unwanted and pervasive. It's important to clearly let an offender know that certain actions are unwelcome. The four most common types of sexual harassment are:
1. Sexual Harassment based on your gender: This is generalized sexist statements, actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men. Examples include insulting remarks; intrusive comments about physical appearance; offensive written material such as graffiti, calendars, cartoons, emails; obscene gestures or sounds; sexual slurs, obscene jokes, humor about sex....
We conclude that the Policy prohibits a substantial amount of protected free speech, even judged in relation to unprotected conduct that it can validly prohibit. First, as the above quotations make clear, the Policy prohibits some speech solely because the speaker "has the purpose" of causing an effect, regardless of whether the speech actually has any effect. The Supreme Court has held that a school may not prohibit speech unless the speech will "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). [Footnote: There are certain categories of speech, inapplicable here, that are excepted from the Tinker standard. See, e.g., Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986) (holding that a high school may ban from classrooms and assemblies "vulgar and lewd speech [that] would undermine the school's basic educational mission."); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (holding that a high school may control the content of student speech in school-sponsored expressive activities so long as the controls are reasonably related to legitimate pedagogical concerns).]
Other circuits have found similar sexual harassment policies that restrict speech based on the speaker's motives to be unconstitutional in light of Tinker. See DeJohn, 537 F.3d at 317 ("[T]he focus on motive is contrary to Tinker's requirement that speech cannot be prohibited in the absence of a tenable threat of disruption."); Saxe, 240 F.3d at 216--17 ("As an initial matter, the Policy punishes not only speech that actually causes disruption, but also speech that merely intends to do so: by its terms, it covers speech 'which has the purpose or effect of' interfering with educational performance or creating a hostile environment. This ignores Tinker's requirement that a school must reasonably believe that speech will cause actual, material disruption before prohibiting it."). Notably, in Saxe, a similar policy was found unconstitutional though it was adopted by an elementary and high school district, whose students receive less First Amendment protection than college students. Thus, the Policy's regulation of speech based solely on the motive of the speaker is unconstitutional.
Moreover, by using subjective words such as "hostile" and "offensive," the Policy is so subjective and broad that it applies to protected speech. In DeJohn, the Third Circuit concluded that such a policy must be invalidated unless it contains "a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual's work." 537 F.3d at 318. Here, the Policy does not contain both a subjective and objective requirement. To the contrary, the District's website admonishes, "If [you are] unsure if certain comments or behavior are offensive do not do it, do not say it.... Ask if something you do or say is being perceived as offensive or unwelcome."
Thus, the Policy reaches constitutionally protected speech that is merely offensive to some listeners, such as discussions of religion, homosexual relations and marriage, sexual morality and freedom, polygamy, or even gender politics and policies. Indeed, the LACC's website indicates that sexual harassment can include "sexist statements ... or degrading attitudes/comments about women or men." This could include an individual's outdated, though protected, opinions on the proper role of the genders. While it may be desirable to promote harmony and civility, these values cannot be enforced at the expense of protected speech under the First Amendment.
Thus, the Policy is unconstitutionally overbroad.
Before striking down a law as facially unconstitutional, a court must consider any narrowing construction that could render the law consistent with the First Amendment.... "Constitutional narrowing seeks to add a constraint to the statute that its drafters plainly had not meant to put there; it is akin to partial invalidation of the statute.... In performing our constitutional narrowing function, we may come up with any interpretation we have reason to believe [the District] would not have rejected."
Here, we could excise the word "purpose" from the Policy so that it reads: "(3) The conduct has the effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile or offensive work or educational environment...." However, that does not cure the constitutional infirmities. A "negative impact" upon the work or academic performance of another does not necessarily justify restricting First Amendment freedoms. Rather, under Tinker, student speech must "collide with the rights of others" to be proscribed, even when the topic of the speech is controversial subjects. 393 U.S. at 511 (1969). Speech that has a "negative impact" does not necessarily collide with the rights of others, and cannot be broadly proscribed....
Moreover, the Policy's prohibition of speech that "creat[es] an intimidating, hostile or offensive work or educational environment" sweeps within it significant protected speech. For example, Plaintiff's protected speech in his speech class was offensive to some of his classmates and thus could be prohibited by the Policy. The DeJohn court concluded almost identical language could not be narrowed. 537 F.3d at 320 ("It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility.").....
The Policy does contain a paragraph that somewhat limits its reach. However it is not sufficient to render the Policy constitutional. That paragraph states:
The Board of Trustees reaffirms its commitment to academic freedom, but recognizes that academic freedom does not allow sexual harassment. The discussion of sexual ideas, taboos, behavior or language which is an intrinsic part of the course content shall in no event constitute sexual harassment. It is recognized that an essential function of education is a probing of received opinions and an exploration of ideas which may cause some students discomfort. It is further recognized that academic freedom insures the faculty's right to teach and the student's right to learn.
Even when the Policy is considered in light of this paragraph, the Policy reaches speech unrelated to a class, such as discussions in any public and common areas at LACC. Even speech related to a class can be restricted by the Policy if the speech is not an intrinsic part of the course content. Thus, the Policy is not sufficiently narrowed by this paragraph.
Plaintiff is likely to succeed on the merits, for the reasons discussed above. He, and other individuals subject to the Policy, face irreparable injury because "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." The balance of hardships favors granting the injunction because Plaintiff and other individuals subject to the Policy face the deprivation of their constitutional liberties, whereas Defendants are merely enjoined from enforcing the likely unconstitutionally overbroad Policy. Finally, the public interest favors the injunction because there is a significant public interest in upholding First Amendment rights. We recognize that the public also has an interest in prohibiting sexual harassment on the District's campuses. However, a properly-drafted statute could achieve that end without running afoul of the First Amendment.
Related Posts (on one page):
- Further Defense of College Students' First Amendment Rights
- Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds: