Shippensburg University (SU) has agreed―again―to dismantle its unconstitutional speech code.
In a victory for free speech on campus, the Alliance Defense Fund (ADF) announced yesterday that it had reached an out-of-court settlement with Shippensburg. The settlement ends ADF’s lawsuit, filed this past May, which alleged that the university had violated the terms of a 2004 agreement in which the school had promised to rescind or reform its unconstitutional speech code.
The 2004 agreement was reached after a federal district judge issued a preliminary injunction against enforcement of its speech code, finding that many of the code’s provisions "could certainly be used to truncate debate and free expression by students." Prior to the injunction and the settlement, SU’s code outlawed speech unquestionably protected under the First Amendment. (For ready example, the school’s harassment policy defined harassment as "unwanted conduct which annoys, threatens, or alarms a person or group," and it outlawed "emotional abuse.") The 2004 agreement was a resounding victory for FIRE’s Speech Codes Litigation Project and ended a lawsuit filed in federal court by former FIRE President David A. French, then an attorney from FIRE’s Legal Network.
It’s gratifying to learn that Shippensburg has seen the error of its ways. ADF is to be commended for its vigilance in ensuring that students at Shippensburg are able to enjoy the full protection of the First Amendment on campus, having their rights guaranteed by law. However, Shippensburg never should have been in this position in the first place. According to ADF’s press release, despite the fact that the 2004 agreement had outlawed SU’s unconstitutional restrictions on speech, the student government at Shippensburg reinstated these policies verbatim.
While it is disappointing to learn that SU’s student government holds the constitutional rights of its constituents in such contempt, SU’s administration must bear a significant portion of the responsibility for the relapse. After the 2004 agreement, Shippensburg had a binding legal obligation to ensure that the unconstitutional code would be reformed or rescinded in such a way that would guarantee the First Amendment rights of its students. Presumably, the bureaucratic effort required to comply with the terms of the agreement is fairly low-grade: inform all administrators (and student government members, since apparently they somehow wield the power to determine university policy without administrative oversight) that the former speech code is now revoked, and ask them to proceed accordingly. SU’s failure to meet such a seemingly simple obligation is distressing.
Luckily for Shippensburg students, however, ADF was on the case, and its vigilance has guaranteed that SU lives up to its promises and obligations. While FIRE is disappointed that a second lawsuit was necessary, we are of course pleased―again―with the result.