Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:

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.

Related Posts (on one page):

  1. Further Defense of College Students' First Amendment Rights
  2. Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:
The problem with civil findings like this is that they leave the perpetrators free to try again - which, historically, they do. Rights organisations like FIRE might have considerably more effect if they made an effort to, for instance, put a Dean in federal prison for criminal violation of students' rights. Only something that drastic will discourage the politically correct.
7.15.2009 3:52pm
NickM (mail) (www):
They just applied Tinker to adults in community colleges!

7.15.2009 3:52pm
Gabriel M. (www):
Check out Footnote 2.

2 We are chagrined that defense counsel and Defendants' representative who were present at the
oral argument on June 10, 2009 were apparently ignorant of the status of a policy they purported to
defend. This lack of preparedness is viewed with great disfavor.


Nick, I'm also surprised to see Tinker applied to college-aged students, but it's not my area of law, so maybe I'm not aware of how usual it is.
7.15.2009 4:29pm
Sean O Se:
This is a somewhat uncharacteristically unclear post. It's not exactly clear who's in trouble because of the policy, or how the teacher's acts or student's acts are related to it, or... Or perhaps I'm just a poor reader.

I'll look at some of the background info.
7.15.2009 5:11pm
John (mail):
The opinion notes that the student received an A in the class and that the teacher was disciplined. According to the court, the issue before it was simply whether enforcement of the policy should be enjoined, and that's why their focus was predominantly on that topic.
7.15.2009 5:34pm
I am no lawyer, but I believe that this country has come to a sorry pass when a "professor" at a City College (read Junior College) can in class call one of his students a "fascist bastard" merely for expressing his convictions and that he can then go on to refuse to give him a grade. (Makes me wonder just who is the fascist.)

Surely, he could have either presented counter arguments and have asked Lopez to consider and/or to respond to them, or he could have encouraged other students civilly to present theirs. This course would have served a legitimate educational purpose while also allowing him more maturely to assert his own views.

I must defer to others who have commented on this thread for their professional acquaintance with the statues, knowledge of procedures, and sagacity in the practices of pleading; but when I was in grammar school, I and all my classmates were given a competent introduction to the Constitution and the Bill of Rights. We were taught not only the letter but the spirit of the First Amendment; it stood firmly as an absolute over the vagaries and tempests of political and cultural excitements. Of course, this tutoring occurred a number of decades ago, well before the advent of Political Correctness.

More and more frequently what Calvin Coolidge observed in the last year of his life rings in my ears: I do not recognize this country anymore.
7.15.2009 5:54pm
This sort of micromanagement by the courts of our educational system is no help to the students or the administrators.

Our educational institutions are charged with shaping young minds, how are they supposed to do that without telling them what to think?
7.15.2009 6:04pm
Dave N (mail):

Calvin Coolidge died on January 5, 1933 (less than four years after leaving office). What did he have against his successor, Herbert Hoover?
7.15.2009 6:06pm

I am no lawyer, but I believe that this country has come to a sorry pass when a "professor" at a City College (read Junior College) can in class call one of his students a "fascist bastard" merely for expressing his convictions and that he can then go on to refuse to give him a grade. (Makes me wonder just who is the fascist.)


More and more frequently what Calvin Coolidge observed in the last year of his life rings in my ears: I do not recognize this country anymore.

Let's see: the student received an "A" in the class, the professor was disciplined by the school, and the policy was enjoined by the Court. So what is it that puts you in a state of dispair about your country? The fact that sometimes an individual, even a "professor" can do a stupid thing?
7.15.2009 6:21pm
I suspect that Calvin Coolidge could not recognize the proto-New Deal policies of Herbert Hoover, whom, I believe CC was aware, was not of his own more limited-government, Constitutionally restrained temperament. Would not Coolidge have objected to (and vetoed if it had passed while he was president), the Smoot-Hartley Tariff? Would he have ever considered the economic initiatives Hoover favored (sorry, I can't remember their names, but I am informed that they existed).

I also suspect that Coolidge was aware of the kind of campaign Roosevelt launched. Now, Roosevelt did, I believe, promise not only to keep but to augment the integrity of the gold standard; of this Coolidge would have approved. Any criticism coming from the Roosevelt campaign that Hoover was insufficiently interventionist and too laissez-faire, however, would have dismayed Coolidge.

If Hoover's interventions and Roosevelt's promises of more had come to set the thrusts of the speeches of the politicians, Coolidge would have no longer recognized the public discourse and hence the tone of the country itself.
7.15.2009 6:37pm
Jiffy, originally the professor refused to grade Lopez at all. That fact (among many others not discussed in this thread) contributed to my dismay. If, as a result of Lopez's legal suit, he subsequently received an A, then my pessimism will be mollified by the good will and good efforts of his lawyers.
7.15.2009 6:43pm
wolfefan (mail):
Hi Xenoskeptikos -

do you have a cite for that quote? I googled it - apparently the only place that google can find it on teh intertubez (unless I missed something) is your post at 5:54 pm above.
7.15.2009 6:52pm
Note to my response to Jiffy: Assuming, of course, that the soundness of Lopez's arguments, his command of grammar and syntax and vocabulary, and his ability to anticipate and to respond to potential objections, merited a grading of A.
7.15.2009 6:55pm

I'll have to search. I seem to have remembered it from the wiki. More later. ...
7.15.2009 6:57pm

Chagrined, I must reveal that I misquoted. Here is what stands in the wiki:

He died suddenly of a heart attack at his home in Northampton, "The Beeches," at 12:45 p.m., January 5, 1933.[141] Shortly before his death, Coolidge confided to an old friend: "I feel I am no longer fit in these times."[142]

It seems I extrapolated and projected my own disquiet. It appears that Coolidge was very self-reflective and would sooner mark an aporia lodged within himself than imply that the strangeness inhered in the advent of new times. To many of you, these present times, far from being strange or defective, may shine triumphal, exciting and alive and all they ought to be. Nevertheless, I plead for a (re)dedication to the Bill of Rights--without penumbras or "empathy," if you please.
7.15.2009 7:20pm
Perseus (mail):
the professor was disciplined by the school

He wasn't fired as he arguably should have been, so what penalty did he suffer?
7.15.2009 10:14pm
therut (mail):
University and college students need to tell their professors that they are nothing but hired help. That YOU are paying them to teach and leave their politics at home. Instead adult students have become a playground for politically motivated nut jobs called Professors. The Professors need to be knocked off their stool. I think the students need to start a new protest movement and fire the college Dean AGAIN.
7.15.2009 10:19pm
Smoot-Hartley Tariff
Smoot-Hartly or Smoot Hawley?
7.15.2009 11:05pm
The most chilling aspect is not knowing what could get you in trouble under this code. I can't read all it says and the guides to interpretation be sure what that in anyway touches upon the sexual is absolutely safe to say and what isn't. Some guy muttering "women are stupid" could be in trouble?
7.15.2009 11:12pm
Smoot Hawley.

My mistake, a couple of mis-strokes on the keyboard. Hopefully, there will be agreement that the protectionist measure, which Hoover signed, contributed to the economic depression.
7.16.2009 12:50am

What is the basis for your assumption that Lopez recieved an A "as a result of [his] legal suit?" From what I can tell from the little bit of record available, it looks like the disciplinary process against the faculty member was initiated by LACC administration before the suit was filed.

My point was that, however badly the professor behaved, it's not a reason to run down our country. Always and everywhere there are individuals who behave badly. The ultimate outcome of the saga shows how well our system (both the administrative process at LACC and the judicial system) worked to protect student rights. Have more faith in America!
7.16.2009 1:34am
LogicalSC (mail):
For our supposedly "intellectual" betters, our colleges repeatedly display a complete lack of knowledge or regard for our laws. And certain areas of studies certainly aren't teaching our children proper respect for opposing points of view or opinion.

Witness the repeatedly ugly reception of conservative thoughts on virtually every campus usually at the behest of a group of professors. They invariably fall in one of the "studies" groups.

Witness the reaction of the University of Oregon's professors to an study authored by a liberal student who wondered why 99% of his professors were not only Democrats but were on the extreme left edge of the Democratic party. His published opinion only asked that couldn't the university make an effort to offer instruction from a range of instruction from a conservative to liberal point of view.

He received numerous vulgar emails from professors telling him that

..if he wanted conservative thought he should have gone to a southern school where he could salute the statue of Jefferson Davis as he went to class??

Our schools are broken and they have been broken by the liberals who claimed that they were expanding our children's education but instead used as an opportunity to enforce the indoctrination of their views, which they lack to ability to persuade adults to accept, upon kids.
7.16.2009 8:19am
I read the sexual harassment policy (at an institution covered by the 1st Amend.) that covers me at work and noted that it has the same language about "purpose or effect" as well as vague terms.

Looks like students get more protection than employees.
7.16.2009 8:58am
willis (mail):
"For our supposedly "intellectual" betters, our colleges repeatedly display a complete lack of knowledge or regard for our laws."

No, they have an excellent command of our laws. They simply ignore them by ostracizing those who espouse opinions differing from theirs. Of course they lose whenever someone stands up to them, but this is so infrequent that they are not compelled to modify their behavior.
7.16.2009 9:00am
submandave (mail) (www):
The irony is that the student or other like-minded folks could just as well have used this policy to hammer the gay rights or feminist groups on campus who frequently engage in speech that could be offensive to a heterosexual or male. Generally, however, they are not commonly predisposed to do so nor is it likely that their complaints would receive equal consideration from the campus powers that be.
7.16.2009 9:19am

That "purpose or effect" language appears in a great many sexual harassment policies, apparently as a result of its inclusion in 29 C.F.R Part 1604.11 (available here), which is the EEOC's regulation on sexual harassment.

Another question raised by this case is whether the university websites that "expound upon" the policy are properly considered part of the policy for First Amendment purposes. In DeJohn, the Third Circuit case cited by the court in the opinion above, the court found that a similar website maintained by Temple University was not in fact part of the school's harassment policy for the purposes of the court's analysis.

For a longer discussion of DeJohn, see 122 Harv. L. Rev. 1772 (2009).
7.16.2009 10:05am
wolfefan (mail):
Hi Xenoskeptioks -

Thanks for checking and getting back to me. I appreciate it. We all make similar mistakes - not all of us admit it so forthrightly, though...
7.16.2009 2:40pm
Minnesota Nice:
Am I missing something, or was the professor himself guilty of violating the sexual harassment policy? By calling the student a "fascist bastard," he made reference to the circumstances of that student's conception. By using the term "bastard" he was accusing the student of having been conceived out of wedlock. This is a direct reference to a sexual act performed by the student's parents. It thus qualifies as "verbal...conduct of a sexual nature." It clearly was intended as an insult. It had "the purpose or effect of having a negative impact upon the [student's]...academic performance, or of creating an intimidating, hostile or offensive...educational environment...."

That's the problem with stupid rules. Eventually they can turn on the rule-makers.
7.16.2009 10:40pm
Jeff Walden (www):
This could include an individual's outdated, though protected, opinions on the proper role of the genders.

Am I the only person who finds this sentence as written an unseemly estimation of the value of such opinions? It's such a small bit of wording, but I see no reason to validate its inclusion, particularly as it could have been adjusted to refrain from expressing opinion so easily. As simple a change as inserting "disputably" before "outdated" would suffice to remove even the appearance of having expressed an opinion on the matter.
7.18.2009 5:50am

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