Archive | Freedom of Speech at Colleges and Universities

D.C. Council Considering Requiring Speech Code in City Parks and the University of District Columbia

The proposed law would mandate that public and charter schools, city parks, city libraries, and the University of District Columbia ban

any gesture or written, verbal or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory handicap, or by any other distinguishing characteristic that: …

has the effect of insulting or demeaning any student or group of students in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of a school, university, recreation facility, or library.

Say, then, that someone puts on an event at a park that “has the effect of insulting or demeaning” Muslims or Scientologists or fundamental Christians or gays or men or women, if some of the insulted or demeaned group consists of “students” (whether school or university students). And say that this “cause[s] substantial disruption in, or substantial interference with, the orderly operation of” the park — perhaps by leading to a counterdemonstration, or maybe just by insulting some other park visitors. Under the policies that the proposed law would mandate, such speech would have to be banned. Yet that would be a pretty clear violation of the First Amendment as it protects free speech in a traditional public forum such as a park, see, e.g., Forsyth County v. Nationalist Movement (1992). And even on non-traditional-public-forum property, such as in a library or an indoor recreational facility, viewpoint-based restrictions would be unconstitutional; a ban on speech that demeans groups based on various criteria would likely qualify as viewpoint-based and therefore unconstitutional.

Likewise, the proposed law would require the University of District Columbia to punish UDC students [...]

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Public University Professor Being Investigated for Condemning Homosexuality in Class

The Pittsburgh Tribune-Review reports:

An Indiana University of Pennsylvania graduate student has filed a complaint with the school’s human resources department, alleging one of her business professors subjected her to humiliation and insults based on her sexuality….

Santiago said the class, instructed by faculty member Dr. Maali Ashamalla, was discussing ethics and legalities. She said a male student said he thought gender reassignment surgery was unethical and should be illegal.

Ashamalla agreed, and called homosexuality “a sin” and “unnatural,” Santiago said.

“I asked her, ‘So are you saying that students like me who identify as homosexual are unnatural, abnormal and disgusting?’ She replied, ‘Yes,'” Santiago said….

University spokeswoman Michelle Fryling confirmed that the school’s human resources department had launched an investigation….

On Wednesday Santiago raised the subject to John Cavanaugh, chancellor of the Pennsylvania State System of Higher Education, during a campus forum at IUP. He did not directly address the issue.

Yesterday, Fryling forwarded a statement from Cavanaugh [which I assume is this statement -EV] denouncing harassment “of any kind — whether face to face or online.” …

UPDATE: An article in the university student newspaper adds more details:

Santiago said the professor went on to claim that Santiago was forcing her homosexuality on her and that she is forced to go to diversity training concerning Safe Zone. The professor went on to say that she cannot be forced to teach that homosexuality is okay and be forced to put up “homographic” images on her door, referring to the Safe Zone symbol of a rainbow and an upside down triangle.

The conversation lasted for several minutes, according to Santiago, but “it felt like forever.”

ANOTHER UPDATE: Some commenters objected to the title of the post, suggesting that it slights the fact (mentioned in the quote) that the professor told [...]

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District Court Opinion on the First Amendment and Public University Professors

To what extent does the First Amendment protect public university professors — including untenured professors — from being disciplined or fired based on their scholarship or public commentary? The matter is not entirely clear, partly because of Garcetti v. Ceballos (2006), which held that the government has a largely free hand in making employment decisions based on an employee’s speech that’s part of his job duties. Does that extend to professors’ speech, given that their duties include scholarship and public commentary, especially when the speech relates to their scholarship? Or are the rules different, because of special protections offered to academic freedom, or the special nature of professors’ work? (My job is indeed to write articles, but, unlike with a typical public employee, such articles wouldn’t be seen as representing the views of my employer, and wouldn’t be directed by my employer.) Garcetti itself reserved judgment on the question, leaving the matter to lower courts, at least until the Supreme Court revisits the matter:

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

Last week’s Van Heerden v. Board of Sup’rs of Louisiana State University (M.D. La. Oct. 20, 2011) discusses this question:

The following facts are undisputed.

In 1992, LSU hired van Heerden to work at the Louisiana Geological Survey, and later at the College of Engineering, as an Associate Professor of Research. (Doc. 54, Ex. A). In 2000, van Heerden co-founded the LSU Hurricane Center and was serving as its Deputy Director when Hurricane Katrina

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UC Irvine Students Convicted for Disrupting Speech

The AP reports:

A California jury found 10 Muslim students guilty Friday of disrupting the Israeli ambassador’s university speech about U.S.-Israel relations, a case that stoked a debate about free speech….

They were charged with misdemeanor counts after standing up, one by one, and shouting prepared statements such as “propagating murder is not an expression of free speech.” …

Prosecutors said the students broke the law by interrupting Oren’s speech on U.S.-Israel relations and cutting short the program, despite calls to behave from campus officials. Defense attorneys argued the students had a right to protest….

Prosecutor Dan Wagner … showed video footage of university officials pleading with students to behave, but they kept interrupting the lecture. Wagner also showed emails sent among members of UC Irvine’s Muslim Student Union planning the disruption and calculating who was willing to get arrested….

From press accounts about the incident about the trial, it strikes me that the verdict is sound, and not a First Amendment violation. Here’s what I wrote in February, when the charges were filed, about the California meeting disruption law involved in this case — a law that I think is a constitutionally permissible content-neutral speech restriction:

1. The relevant statute, Cal. Penal Code § 403, says: “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character … is guilty of a misdemeanor.” In re Kay (1970) held that, to be convicted under the statute, the prosecution must show “that the defendant [1] substantially impaired the conduct of the meeting by intentionally committing acts [2] in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known,” and [3] [...]

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College Department Chair Sues Professor for Libel, Loses

An interesting example of this fortunately rare occurrence comes in Olguin v. Santa Barbara Community College Dist. (Cal. Ct. App. Aug. 15, 2011). The case has an interesting discussion of the state-law “common interest privilege,” which is quite important in cases involving alleged defamation within an organization or in job references; but here is an excerpt describing the court’s conclusion that the statements were likely to be nondefamatory opinion:

Plaintiff Arthur Olguin, a psychology professor, appeals a judgment in favor of defendants Santa Barbara Community College District (District) and Raymond Launier, a District psychology professor. Launier filed a grievance against Olguin and sent a memo to District colleagues. Launier claimed that Olguin violated academic freedom when Olguin instructed the college bookstore not to order materials Launier authored and planned to use in his classes. Olguin stated the memo contained false statements including the “republication” of a student’s complaint to the District about witnessing him commit a lewd act in his office….

[The court concludes that there was no error in the instructions that led to a jury verdict in favor of defendants, but goes on to say: -EV]

Moreover, “[a] judgment may not be reversed on appeal, even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.'” … [Here,] there was no miscarriage of justice. Launier’s testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom. Olguin notes that Launier said he had a “forked tongue for spewing bile.” But any colleague reading it would understand that this was said in jest because Launier prefaced these remarks with the phrase “[t]ongue in cheek.”

Olguin views all of Launier’s

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The UCSD Committee on Academic Freedom Report

A colleague pointed me to the report, which also quotes the don’t-publish-your-article letter from the dean. (For more on the matter, see this post from earlier today.) Here’s the substance of the report:

The charge of the Academic Senate Committee on Academic Freedom (CAF) is to “report to the Division any conditions within or without the University which, in the judgment of the committee, may affect the academic freedom of the members of the University.”

On March 11, 2011, CAF received a complaint from a professor contending that his/her academic freedom rights had been seriously abridged by the UCSD administration. With regret, we have concluded that the administration did indeed violate generally accepted norms of academic freedom.

The complaint arose out of a letter that the professor (“Professor A”) received on June 16, 2009 from the dean of an academic unit at UCSD. The dean told CAF that the letter was drafted with the assistance of lawyers in the Office of the Senior Vice Chancellor for Academic Affairs. The letter was cc’d to the Office of Research Affairs and the Office of the Senior Vice Chancellor for Academic Affairs. The dean’s letter arose out of a long-running academic disagreement between two faculty members (a dispute in which CAF does not take sides). The dean directed Professor A to cease pursuing a critical re-examination of the other professor’s research and data. The letter said (we here obfuscate identities):

“You are to stop harassing [Professor B]. This means: stop contacting B with questions regarding [name of B’s publication], his/her research methods, or his/her previous research methods; stop contacting others about your re-analysis of his/her data; refrain from discussing … your re-analysis of B’s data at your presentations at any meetings, including scholarly meetings like the [name of professional association]; and do

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Did Dean Order a UC San Diego Professor Not to Publish an Article Critical of a Colleague?

So alleges the UCSD faculty assembly, “after hearing a detailed and strongly worded report from its Committee on Academic Freedom,” according to the San Diego Union-Tribune:

The issue involves Richard Biernacki, a professor of sociology, and Jeff Elman, dean of the Division of Social Sciences.

In June 2009, Biernacki submitted a manuscript titled “Inside the Rituals of Social Science” to Duke University Press. The manuscript examines what Biernacki calls “methodological problems in the field” and critiques the work of other sociologists, including one of Biernacki’s colleagues at UCSD.

The same month Elman wrote Biernacki a letter ordering him not to publish his work or discuss it at professional meetings. Doing so, Elman wrote, could result in “written censure, reduction in salary, demotion, suspension or dismissal.”

Elman did not respond to a request for comment. But his concern, according to his letter to Biernacki, was that Biernacki’s research and manuscript “may damage the reputation of a colleague and therefore may be considered harassment.” …

Moreover, according to a University statement quoted by Inside Higher Ed (which has more on the case), the University seems to be acknowledging the charges:

We deeply regret that statements made by an academic administrator have led to questions about the administration’s commitment to academic freedom rights…. The Academic Senate leadership and administration of the University of California, San Diego unequivocally affirms our commitment to the principles of Academic Freedom. We acknowledge the recent determination by the Committee on Academic Freedom (CAF) and agree with CAF that the administration has a fundamental responsibility to protect the rights of faculty to research and publish scholarly work, and we will jointly redouble our efforts to ensure that every member of our administration fully understands this responsibility.

Sounds very bad. The Committee on Academic Freedom report noted, “We cannot [...]

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University Political Discrimination Case Brought by Prof. Michael Adams (a Noted Conservative Commentator)

The Fourth Circuit just handed down its decision in this case, Adams v. UNCW. The court concluded that Prof. Adams didn’t introduce sufficient evidence to support his religious discrimination claim, and that the claim was therefore rightly dismissed before trial. But the court also concluded that Adams’ political discrimination claim could proceed.

Here’s a very quick summary of what happened: Adams is a tenured associate professor of criminology at the University of North Carolina-Wilmington. He sought promotion to full professor, based partly on his political writings (and not just his original academic research), but the promotion was denied. Adams sued, claiming that the denial stemmed from faculty members’ hostility to his religion and his political views.

The trial court held that Adams’ claim couldn’t go forward, because of the Supreme Court’s Garcetti v. Ceballos decision. That case generally held that government employers had a free hand in making employment decisions based on employees’ speech said as part of their jobs; any First Amendment protection that employees have against employer retaliation only applies to speech outside their job duties. (Adams’ speech, the court said, was within his job duties, partly because he asked that it be considered as part of his promotion evaluation, and thus himself argued that it was part of his academic mission.) But Garcetti expressly stated,

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

And the Fourth Circuit held that, when it comes to public university professor employment decisions, Garcetti doesn’t apply, and [...]

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Foundation for Individual Rights in Education on the UCLA Undergrad’s “Asians in the Library” Video

As FIRE puts it, “For the last couple of days, controversy has been buzzing about a YouTube video (now with more than 1.3 million views) from a college student at the University of California, Los Angeles (UCLA), who chose to take to the Internet to complain about the behavior of Asian students in the UCLA library and elsewhere. The student, who has been identified as Alexandra Wallace, claims that the ‘hordes’ of Asian students at UCLA (UCLA’s undergraduate population is about 37 percent Asian and Pacific Islander) cause various annoyances like loudly talking on their cell phones in the library and having their extended families come over and do their chores for them.”

FIRE goes on to criticize — in my view, quite rightly — some statements from UCLA administrators, including the seeming suggestion that the video could lead to disciplining the student, and the statement that “If she’s received a death threat, I find that as deplorable as her original YouTube video.” (Death threats are much more deplorable than making bigoted generalizations about your classmates.) The speech is clearly constitutionally protected, as well as being moronic.

I should note, just to anticipate one common response, that as with much idiocy not much would be lost to the First Amendment if this particular sort of statement, and only this sort of statement, somehow magically vanished. I watched the video, and it’s nonsense.

But the same rationale that would justify punishing a student for this video would equally justify punishing students who argue (on video, in newspaper articles, or what have you) many other things. If the theory is that the speech can be restricted because it somehow creates a “hostile educational environment” for a particular group, the same could be said of statements that — just to give a few [...]

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Prosecution of Students Who Disrupted UC Irvine Speech by Israeli Ambassador

The L.A. Times reported late last week that

The Orange County district attorney’s office on Friday charged 11 defendants with conspiring to disrupt a meeting and a speech by the Israeli ambassador to the United States at UC Irvine last year….

In a statement, Orange County Dist. Atty.Tony Rackauckas said the case was filed because of an “organized attempted to squelch the speaker.” He also said the students “meant to stop this speech and stop anyone else from hearing his ideas, and they did so by disrupting a lawful meeting.” …

[During t]he Feb. 8, 2010, incident …, the Israeli ambassador … was shouted down repeatedly, and supporters cheered as students were escorted away by police.

The students are accused of meeting with other members of the Muslim Student Union to discuss options to respond to the speech as far out as six days before the event.

According to prosecutors, students circulated e-mails and held multiple meetings to plan the disruption of the speech. One of the students is accused of sending an e-mail to the MSU-UCI message board announcing that “we will be staging a University of Chicago Style disruption of the Ambassador’s speech.” …

Each [defendant] is charged with one misdemeanor count of conspiracy to disturb a meeting and one misdemeanor count of the disturbance of the meeting….

For video excerpts on the incident, see here.

I think the prosecution is both constitutionally sound and a good idea, but I want to use this post chiefly to pass along some information about California law on the subject.

1. The relevant statute, Cal. Penal Code § 403, says: “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character … is guilty of a misdemeanor.” [...]

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Virginia’s Worst University Speech Code?

Richmond Times-Dispatch columnist Barton Hinkle has a column surveying speech codes at Virginia public universities {HT: co-blogger Todd Zywicki]. It turns out that George Mason University may have the worst of a bad lot:

Free speech is one of those values to which everyone gives lip service. Nearly no one considers himself pro-censorship. Yet as FIRE has exhaustively documented, institutions of higher learning — which ought to welcome freewheeling intellectual debate — often are among the most censorious and oppressive places in America. And unfortunately, a few of the worst offenders are right here in Virginia….

Virginia Tech…. continues to flirt with totalitarian impulses. Witness the attempt earlier this year to shut down the student newspaper because of anonymous comments posted on its website….

Yet when it comes to Orwellian regulation of thoughtcrime, Tech remains a rank amateur next to George Mason University. GMU maintains a speech code that prohibits “any form of bigotry . . . . whether verbal, written, psychological, direct, or implied….”

GMU also insists that students get permission before chalking a message on a sidewalk. What’s more: “The sale, distribution, or solicitation of any . . . newspaper by GMU and non-GMU organizations and individuals is subject to prior authorization.” Taken together, such policies give GMU officials a blank slate to control what members of the university community can say and hear on campus.

This, mind you, at a school named after a man who is called “The Father of the Bill of Rights….”

UVa has taken the right step by relaxing its speech codes. It’s time for the rest of Virginia’s public colleges to do the same.

I would make two points about GMU’s speech code. First, like many such codes, it isn’t enforced very aggressively. In practice, both students and faculty often make [...]

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DePaul University Says No to Pro-Marijuana-Legalization Group

The Foundation for Individual Rights in Education has the details. The university admits that it is excluding the group from generally available student group registration benefits, because the university disapproves of the group’s message:

Considerable research indicates the use of cannabis does not contribute to healthy decision-making, particularly in college-age populations. Given the above, the University determined that recognizing the “Students for Cannabis Policy Reform Group” as a DePaul student organization would not be congruent with our institutional goals regarding the health and well-being of our students.

I rather doubt that recognizing such a group would materially affect the level of marijuana use by DePaul students. But denying recognition would affect the amount of debate about marijuana policy that takes place. Sounds like unhealthy decision-making on the university’s part to me.

DePaul is a private university, so it’s free to engage in unhealthy decision-making. But excluding the expression of some views from the very broadly open student group recognition program, it seems to me, is the gateway drug to broader restrictions as well, restrictions that are even more dangerous to the culture of debate and discussion that universities, private and public, ought to be promoting. DePaul itself has officially stated, in its Guiding Principles on Speech and Expression that it is “committed to fostering a community that welcomes open discourse.” And while that document seems to suggest that DePaul’s Catholic mission may support some restrictions aimed at protecting “dignity,” “respect,” and “civility,” I don’t see anything in that statement that justifies discrimination against student speech that promotes legalization of marijuana. So I’m glad that FIRE is taking DePaul to task for its position.

Finally, DePaul’s letter suggests that denying recognition to the student group would still leave open “myriad opportunities for students to gather together and express their views to [...]

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No Viewpoint-Based Exclusions from Ostensibly Open Event on College Property

From Yates v. Fithian (W.D. Wash. Sept. 23, 2010):

Plaintiffs allege in this action that defendants excluded them from the Bellevue College (“College”) gymnasium while a Maria Cantwell Campaign event was taking place. Plaintiff students claim that they were refused entry because they wore t-shirts bearing the name of Cantwell’s opponent [McGavick], and that as a result, their First Amendment rights were violated….

[W]hen Bellevue College contracted to rent the gymnasium to the Cantwell Campaign, it acted in a commercial, proprietary capacity…. [But t]he forum in question is a college campus — a place where the free exchange and communication of ideas is fundamental. Moreover, the prohibited expression at issue was political speech, “which occupies the highest, most protected position.” Therefore, the balance of interests favors the plaintiffs.

Moreover, … once a university creates an open forum, it cannot then proceed to enforce exclusions to an otherwise open forum. Despite the fact that Bellevue College entered into a private rental agreement, an e-mail sent by the Director of Public Safety conveyed to the College’s students that the Cantwell Campaign would permit all students, faculty, and staff to attend the event. Moreover, several professors at the College either assigned or encouraged students in their classes to attend the Campaign event. Plaintiffs were concerned that their attendance would be construed as support. The e-mail stating that all students are welcome to attend the event, along with assignments by professors requiring students to participate in the event both diminish the significance of the fact that the event was the product of a private rental agreement. Through the action of College faculty and administrators, the Cantwell Campaign event was converted into an open forum from which plaintiffs could not be excluded due to their expression of support for an opposing candidate.

Finally, despite

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Nebraska Supreme Court Decision on Offensive E-Mails

Here is an edited version of the opinion in the First Amendment / cyberspace law case that I briefed and argued, and that the Nebraska Supreme Court just decided today. It shouldn’t be terribly surprising or novel to those who know First Amendment law (though the Nebraska Court of Appeals decision that the Nebraska Supreme Court reversed was surprising). Still, I thought I’d pass it along in case some of our readers were interested.

* * *

The State convicted … Darren J. Drahota … of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature. The e-mails — laced with provocative and insulting rhetoric and with the Iraq war as a background — suggested that Avery was a traitor and that he sympathized with Al Qaeda, a terrorist organization. [These e-mails followed an earlier exchange, in which Avery eventually asked Drahota to stop e-mailing him. -EV]

We are asked to decide whether Drahota’s e-mails were protected speech under the First Amendment. The Court of Appeals determined that the First Amendment did not protect Drahota’s speech because the e-mails were “fighting words,” an exception to free speech protection. We disagree….

Offensive Speech Does Not Lose Its Constitutional Protection …
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Nebraska Supreme Court Reverses Disturbing-the-Peace Convictions for Sending Rude E-Mails to Professor Who Was Running for the Legislature

This is the case that I briefed and argued last year (see here for my initial post about the petition for review to the Nebraska Supreme Court, and here for the various documents in the case, including the Nebraska Court of Appeals decision that had upheld the convictions). I’ll post more on the subject today, but for now I just wanted to note this and pass along the Nebraska Supreme Court opinion. Sometimes it’s a lot of fun to be a lawyer! [...]

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