September 30, 2008
President Graham Spanier
Pennsylvania State University – University Park
201 Old Main
University Park, PA 16802
Sent via U.S. Mail and Facsimile (814-863-8583)
Re: Compliance With Third Circuit Ruling in DeJohn v. Temple University
Dear President Spanier:
As you can see from our list of Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, due process, freedom of conscience, and academic freedom on America’s college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.
Last month, the United States Court of Appeals for the Third Circuit issued a ruling in DeJohn v. Temple University, 2008 U.S. App. LEXIS 16463 (3d Cir. Aug. 4, 2008) striking down Temple University’s former sexual harassment policy as unconstitutional. As President of Pennsylvania State University – University Park, a public university within the Third Circuit’s jurisdiction, please be advised that the court’s ruling in DeJohn is directly applicable to the policies maintained at Penn State.
At present, FIRE rates Penn State a “red light” institution on Spotlight: The Campus Freedom Resource, FIRE’s database of speech restrictions at colleges and universities across the country. The “red light” rating indicates that in our judgment, one or more of your policies unconstitutionally restricts freedom of speech, as defined by established legal precedent.
In light of the Third Circuit’s decision, I write today to strongly recommend a thorough review of Penn State’s policies to verify compliance with Penn State’s legal obligation to fulfill the First Amendment’s guarantee of freedom of expression.
In DeJohn, the Third Circuit held that Temple’s policy—which prohibited “expressive, visual, or physical conduct of a sexual or gender-motivated nature” when “such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or… such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment”—was impermissibly overbroad because it potentially prohibited constitutionally protected expression. The court held that because Temple’s policy failed to require a showing of both severity and pervasiveness (i.e., “a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work”), the policy “provide[d] no shelter for core protected speech” and thus violated the First Amendment rights of all Temple students.
More broadly, DeJohn makes clear—again—that public universities cannot abridge the First Amendment on campus, whether via harassment policies (like the one at issue in DeJohn), civility policies, free speech zones, or other unconstitutional speech codes. Indeed, the Third Circuit’s ruling should come as no surprise to public universities. That the First Amendment’s protections fully extend to the public university campus is settled law, and federal and state courts across the country have struck down unconstitutional speech codes masquerading as harassment or civility policies at public universities over the past twenty years.
Moreover, the Supreme Court has long held that public universities occupy a special place in our nation’s First Amendment jurisprudence, stating that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Healy v. James, 408 U.S. 169, 180 (1972). Additionally, the Department of Education’s Office for Civil Rights made clear in a 2003 letter that “[n]o OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.” Most recently, the United States Congress, voting last month to reauthorize the Higher Education Act with broad bipartisan support, included a “sense of Congress” resolution stating that “an institution of higher education should facilitate the free and open exchange of ideas.”
Despite such a clear and sustained judicial, administrative, and legislative response to unconstitutional speech codes at our nation’s colleges and universities, however, FIRE must note with dismay the disappointing prevalence and hardiness of such codes—including the code at Penn State. A recent FIRE report (Spotlight on Speech Codes 2007: The State of Free Speech on Our Nation’s Campuses) found that 79 percent of the 244 public universities surveyed maintained at least one policy that both clearly and substantially restricts freedom of speech. The policies at Penn State that FIRE has determined to be constitutionally suspect may be found by visiting www.thefire.org/spotlight.
With the authority of the Third Circuit behind the DeJohn ruling, Temple’s former sexual harassment policy has now become the latest in a long line of speech codes to fail in court. In light of this important development, FIRE hopes that our nation’s public institutions of higher learning will finally understand this crucial imperative: Harassment policies must be carefully tailored so as to target only that speech which constitutes “true harassment” under binding Supreme Court precedent, and unconstitutional restrictions on free expression on campus are unacceptable.
We ask that after visiting FIRE’s website, you review Penn State’s policies and make any necessary changes. While FIRE does not engage in litigation, we believe you should be aware that any public university policy prohibiting constitutionally protected expression is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which university administrators can be sued in their individual capacities. When the law is so clearly established with regard to unconstitutional speech codes, claims of immunity from liability on the part of individual administrators will likely fail. State officials and employees are offered only qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Davis v. Scherer, 468 U.S. 183 (1984). This means that administrators may be held personally liable for continuing to maintain unconstitutional speech codes in violation of students’ First Amendment rights.
As the Supreme Court declared—and as I am sure you will agree—“[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’” Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted). In that spirit, I trust you will ensure that your institution is in full compliance with the DeJohn ruling and the First Amendment, and I thank you for your attention to ensuring for your students the full exercise of their constitutional rights on campus.
Director of Legal and Public Advocacy
Rodney Erickson, Executive Vice President and Provost
Blannie Bowen, Vice Provost for Academic Affairs
Damon Sims, Vice President for Student Affairs