Rare Case Involving Restrictions on In-Class Speech at a University

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.

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