Universities’ Compliance with Speech Code Decisions Leaves Much to Be Desired

By September 24, 2009

FIRE’s newest Justice Robert H. Jackson Legal Fellow is Erica Goldberg. Erica is a graduate of Tufts University, where she was editor-in-chief of Tufts’ weekly newspaper, and of Stanford Law School, where she was a member of the moot court board. She also served as a law clerk to the Honorable Ronald L. Gilman on the Court of Appeals for the Sixth Circuit, where she was confronted with various deprivations of freedom of expression. Before becoming a Robert H. Jackson fellow, Erica worked for two years as an appellate attorney at Latham & Watkins in Washington D.C. and then as a legal blogger and journalist in Cambodia. This is her first blog entry for The Torch.

FIRE justifiably touts the fact that, when challenged in court, every speech code that we have deemed unconstitutional has been overturned. However, a university’s unwillingness to comply with an adverse ruling can convert a judicial decision into what is, for all practical purposes, merely more speech. Universities vary in their responses to courtroom defeatsome loudly exalt free speech values while maintaining unlawful speech policies, while others genuinely set out to meet their First Amendment obligations.

For example, the University of Michigan’s Policy on Discrimination and Discriminatory Harassment was invalidated as overbroad and vague by a federal district court in 1989. See Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989). The university’s policy, which prohibited the creation of a “demeaning” environment through “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual” on the basis of certain classifications, had been applied against protected speech a number of times. Id. at 865. For example, the university once pursued a complaint made by a minority professor who was bothered when a dentistry student remarked that minorities were being treated unfairly in a pre-clinical class. According to the court, Michigan could not “seriously argue that the policy was never interpreted to reach protected conduct.” Id. at 866.

Yet, despite being told by a court that “statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad,” id. at 864, twenty years later, the University of Michigan still has not extended the full protections of the First Amendment to its students. Its Policy and Guidelines Regarding Electronic Access to Potentially Offensive Material, for example, states that “[i]ndividuals should not be unwittingly exposed to offensive material by the deliberate and knowing acts of others.” The university also defines bias-related incidents to include “writing a racial epithet in erasable marker on someone’s dry-erase board, making fun of another person because of the person’s language or accent, or making insulting comments about someone’s traditional manner of dress or geographic origin.” This could include, for example, comments relating to whether the burqa, a garment worn by women in some Islamic traditions, is harmful to women, or two friends joking with each other about their respective ethnicities, if overheard by someone who finds it offensive. Finally, students are warned that “University Housing … will … take action in all cases [of bias incidents] regardless of their status under federal and state laws.”

To be fair, the University of Michigan has rescinded the most chilling aspects of its policies. It has substantially altered its sexual harassment policy, and now proclaims that “[s]tudents at the University have the same rights and protections under the Constitutions of the United States and the State of Michigan as other citizens.”  But in the name of the otherwise laudable goal of increasing civility and diversity on campus, it retains policies that censor protected speech and punish mere insensitivity.

Texas Tech University, whose speech code was stuck down in the Speech Code Litigation Project case of Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004), has also created policies expressing a commitment to academic freedom and the exploration of ideas in the wake of its legal defeat. Yet it cites as examples of sexual harassment “sexually explicit visual material calendars, posters, cards, software, internet materials,” which in the vast majority of cases usually do not constitute real sexual harassment. Texas Tech has certainly altered its policies since the court held that it could not maintain a speech code that banned, among other things, “insults,” “ridicule,” and “personal attacks,” but the court’s ruling has not proven to be enough for Texas Tech to fully embrace free speech values.

Central Michigan University’s Discriminatory Harassment Policy was struck down in 1995 by the Sixth Circuit Court of Appeals as being “unconstitutional on its face,” vague, and overbroad, in part because under the policy, “[d]efining what is offensive is, in fact, wholly delegated to university officials.” See Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1184 (6th Cir. 1995). To this day, Central Michigan University’s policy regarding bias incidents asserts that “[a]nytime anyone in the CMU community feels belittled, disrespected, threatened, or unsafe because of who they are, the entire university community is diminished. That’s why it’s important to report all bias incidents … even those intended as jokes.” Central Michigan’s policy does not state which bias incidents are punishable, but does empower a Bias Incident Response Team to determine how to respond to each bias incident. A court confronting this policy would likely overturn it on the very same grounds given by the court of appeals.

On the other hand, Stanford University’s brush with the law has yielded a sincere effort to safeguard free expression, at least within the university’s official policies. Stanford’s speech code was invalidated in 1995 based on California’s “Leonard Law,” California Education Code § 94367, which extends the First Amendment to private, non-sectarian colleges in California. Stanford’s sexual harassment policy, given a green-light rating by FIRE, now requires unwanted speech to have the “purpose or effect of unreasonably interfering with an individual’s academic or work performance or creating an intimidating or hostile academic, work or student living environment.” Although Stanford maintains some questionable policies, including one requiring students to request permission two weeks in advance to reserve its “free speech zone,” the university appears to have made authentic improvements to its speech policies.

In addition to universities varying in their compliance with direct court orders, schools in the same university system or jurisdiction often maintain identical policies to those that have been struck down. After FIRE’s Speech Code Litigation Project won a critical victory against San Francisco State University and the California State University System, there was little judicial oversight into whether individual schools in that system were changing their system-wide policy. In addition, Temple University’s speech code was overturned by the Third Circuit Court of Appeals last year in DeJohn v. Temple University, 537 F.3d 301, 317 (3d Cir. 2008), which invalidated a harassment policy with “broad” and “subjective” terms covering any speech of a gender-motivated nature, “the content of which offends someone.” Yet schools within the Third Circuit still maintain codes similar to Temple University’s invalidated policy. Rutgers University, for example, defines bias as “an act–verbal, written, physical, psychological–that maligns, threatens, or harms a person or group on the basis of race, religion, color, sex, age, sexual orientation, national origin, ancestry, disability, marital status, or veteran status.” Pennsylvania State University’s housing policy states that “[a]ny materials found to be offensive or outside the boundaries of reasonable community expectations will be referred to the area Residential Life staff.”

The fact that even universities that have been directly sanctioned by the courts preserve unconstitutional policies is a testament to the strong incentives that motivate the suppression of speech. Many of these institutional motives may be honorable in theory, but result in unabashed viewpoint discrimination and undue burdens on the marketplace of ideas. Victories in court are important, both for the plaintiffs involved and for free speech jurisprudence, but until universities internalize the values championed by the courts in these cases, they will never fully comply with judicial mandates. That is why litigation on free speech issues, while often satisfying, cannot restore liberty to America’s campuses in isolationand why FIRE spends so much time working to convince students, faculty, and administrators of the critical value of free speech in a free society.

Schools: Texas Tech University University of Michigan – Ann Arbor San Francisco State University Cases: San Francisco State University: Speech Code Litigation Project Texas Tech University: Speech Code Litigation