As the Year Winds Down, Be Sure to Check Out FIRE’s Collection of Legal Scholarship

By December 28, 2010

With the year coming to a close, it’s as good a time as any to check out the impressive legal scholarship that FIRE has amassed in the past few years. These law journal and law review articles bring much-needed attention and legal scrutiny to the free speech issues that lie at the heart of FIRE’s mission and activities.

Non-lawyers might not know why publishing in law journals is important and carries more weight than, say, a blog by a legal expert. First, legal scholarship can be cited in court as authority on legal issues on which there may not be clear-cut case law (blogs can be cited too, but would generally be far less influential). Second, law journal articles are competitively published, like papers in scientific journals.

FIRE’s legal scholarship has been made possible by our Justice Robert H. Jackson Legal Fellowship, which we started in 2007. Indeed, the Fellowship was established precisely in order to produce these articles and to thereby advance FIRE’s mission. As one of the inaugural Jackson Legal Fellows, along with Kelly Sarabyn, I was able to contribute to FIRE’s legal scholarship. Today, Erica Goldberg, our current Jackson Fellow, continues this work.

Here is a list of articles produced thus far as part of the Jackson Legal Fellowship:

"The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights," by Azhar Majeed
Published May 2009, The Journal of College and University Law (Notre Dame Law School)
This article argues that colleges and universities often misapply sexual and racial harassment law to the detriment of campus speech rights, and that in doing so they are misreading their obligations under Title IX and Title VI to prevent true harassment of students.

"Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes," by Azhar Majeed
Published November 2009, Georgetown Journal of Law & Public Policy
This article argues that campus speech codes violate the free speech rights of university students, and that in spite of having been deemed unconstitutional by an unbroken series of court decisions, colleges and universities continue to maintain doctrinally flawed speech codes.

"Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights," by Azhar Majeed
Published October 2010, Cardozo Public Law, Policy and Ethics Journal
This article argues that courts should not grant qualified immunity to university administrators when they are sued for monetary damages in their personal capacity for violating students’ free speech rights because the law is so clearly established with respect to First Amendment rights on campus.

"The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students’ Free Speech Rights," by Kelly Sarabyn
Published April 2009, Texas Journal on Civil Liberties & Civil Rights (University of Texas at Austin) 
This article examines the history of the 26th Amendment and demonstrates that it was intended to make 18-year-olds full-fledged citizens, and therefore to end the in loco parentis university. It also argues that since most college students are 18 or older, and most high school students are under 18, the 26th Amendment produces a clear line between the two institutions, and dictates that college students cannot be treated like high school students for the purpose of free speech.

"Free Speech at Private Universities," by Kelly Sarabyn
Published April 2010, Journal of Law and Education (University of South Carolina Law Center and the Louis D. Brandeis School of Law University of Louisville)

Many private universities promise free speech for students and faculty, but then have fine print policies proscribing offensive or harassing speech. This article argues that when such conflicting policies or promises exist, courts should enforce the promises private universities make in light of the reasonable expectations of the student. At liberal arts and research universities, students would reasonably expect to have free speech on campus, and thus the contracts should be interpreted accordingly. This allows private universities to proscribe speech if they wish, and thus respects the right of private association, but it allows universities to do this only if they do so clearly and publicly.

"Prescribing Orthodoxy," by Kelly Sarabyn
Published June 2010, Cardozo Public Law, Policy and Ethics Journal 

This article studies the right to freedom of conscience as it manifests itself in various constitutional doctrines and demonstrates how this right against governmental orthodoxy prohibits colleges from implementing programs that seek to mold students’ ideological beliefs with coercion.

"Measuring a Degree of Deference: Institutional Academic Freedom in a Post-Grutter World," by Erica Goldberg and Kelly Sarabyn
Published November 2010, Santa Clara Law Review (Santa Clara University School of Law)
By resolving the ambiguities presented by the Supreme Court’s decision in Grutter v. Bollinger, this article establishes a framework for affording institutions deference for their decision-making. Institutions may invoke academic freedom only for decisions that are truly academic and do not trample upon the First Amendment rights of students and faculty, and should receive different amounts of deference depending on what body within the institution is making the academic decision at issue.

"Must Universities ‘Subsidize’ Controversial Ideas?: Allocating Security Fees When Student Groups Host Divisive Speakers," by Erica Goldberg
Accepted for publication as lead article, George Mason University Civil Rights Law Journal
This article creates viewpoint neutral rules to govern the assessment of security fees so as not to punish student groups who wish to sponsor a controversial speaker’s visit to campus.

All of these articles are also available on FIRE’s online journal, The Lantern, so be sure to read up on them!