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California court ruling may impact free expression on campus

By March 28, 2018

Last week, California’s highest court issued a decision about universities’ liability to students who are the victims of violence on campus in an opinion that could have a wide-reaching impact on institutional responses to perceived threats. Given that universities already routinely censor or punish constitutionally protected speech under the guise of preventing violence, the impact of this ruling on students’ expressive rights could be significant.

The facts of the case are tragic, a perfect illustration of the old adage that hard cases make bad law. Shortly after his enrollment at the University of California, Los Angeles in the fall of 2008, then-student Damon Thompson began to display signs of what would later be diagnosed as paranoid schizophrenia. He repeatedly complained that he believed various faculty and students were threatening and harassing him, and admitted to a psychiatrist at the university’s counseling center that he had even had thoughts of harming others. UCLA personnel took various steps to address Thompson’s mental condition, at one point taking him to the emergency room for an emergency psychiatric evaluation. He received mental health treatment while at UCLA, but ultimately discontinued that treatment in the spring of 2009. Throughout the summer and fall of 2009, Thompson continued to complain about the “disruptive” behavior of other students — including Katherine Rosen, who worked near Thompson in the chemistry lab — he believed were insulting and criticizing him. Then, on October 8, 2009, Thompson stabbed Rosen while they worked in the chemistry lab, leaving her with life-threatening injuries.

In 2010, Rosen sued UCLA for negligence, alleging that UCLA had a legal duty to take reasonable measures to ensure her safety. Rosen argued that UCLA breached this duty because, “although aware of Thompson’s ‘dangerous propensities,’ it failed to warn or protect her or to control Thompson’s foreseeably violent conduct.”

Under general principles of tort law, people have the duty to act with reasonable care. But as the court held, absent some kind of “special relationship,” they do not have the duty “to control the conduct of another, nor to warn those endangered by such conduct.” The question the California Supreme Court considered, therefore, was whether such a “special relationship” exists between a university and its students.

While not deciding whether UCLA had breached its duty in this particular case — that will now be a matter for a jury to decide — the court ruled that:

Considering the unique features of the college environment, we conclude postsecondary schools do have a special relationship with students while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services. [Emphasis added.]

In the context of a schizophrenic student who stabbed a classmate in the chest during chemistry lab, this ruling may seem wholly reasonable. But this is where the “hard cases make bad law” adage comes in. As several commentators have already pointed out, this case is likely to have a significant impact on questions of when to suspend or expel students under much less extreme circumstances. And FIRE knows, because we have been handling these cases for years, that colleges and universities already overreach greatly, and impermissibly, into the realm of constitutionally protected speech in their efforts to prevent violence on campus.

In its opinion, the California Supreme Court notes that the April 16, 2007, massacre at Virginia Tech was a watershed moment for colleges and universities with regard to their handling of potentially violent students. While many of these efforts — such as “improvements in student mental health services, emergency communications, preparedness, and hazard mitigation” — were undoubtedly a good thing, FIRE also saw a dramatic increase in actions taken against students and faculty for speech that was wholly protected and not threatening.

Just six months after Virginia Tech, for example, Valdosta State University in Georgia summarily expelled student Hayden Barnes, without a hearing, for his peaceful protest of proposed new parking structures on campus. According to VSU’s then-president, Ronald Zaccari, Barnes posed a “clear and present danger” to the campus because of a collage he had posted on his Facebook page as part of his protest. Among other things, the collage referred to the “Zaccari Memorial Parking Garage,” something Barnes said was a reference to comments Zaccari had made about the garage’s impact on his legacy, but something Zaccari apparently interpreted as a threat on his life. FIRE President and CEO Greg Lukianoff noted at the time, “A kind of madness seems to be gripping our colleges, one in which merely claiming a student poses a ‘threat’ — no matter how absurd or attenuated the allegation may be — is enough to punish even the most clearly protected speech.” Barnes successfully sued VSU administrators and, inspired by his own fight against injustice, went on to become an attorney.

In the years following the Virginia Tech massacre, Barnes’ case was just one of numerous instances in which students or faculty faced censorship for protected speech because a university characterized it as potentially threatening, and the problem continues to this day. Albion College, for example, recently charged student Alexander Tokie with making threats of violence after Tokie sent an obviously satirical email about “ANTIFA and ISIS hunting permits.”

Indeed, the California Supreme Court recognizes that its ruling may encourage schools to move too far in the other direction:

We understand that the recognition of a duty of care will force schools to balance competing goals and make sometimes difficult decisions. The existence of a duty may give some schools a marginal incentive to suspend or expel students who display a potential for violence.

It is difficult to know just yet how dramatic the impact of the court’s ruling is likely to be. The court did, after all, limit its finding of a duty to students “engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services,” recognizing that “many aspects of a modern college student’s life are, quite properly, beyond the institution’s control.” This does limit the reach of the decision somewhat. At the same time, given that the duty extends to an as-yet-undefined set of activities beyond the classroom but “closely related to [the institution’s] delivery of educational services,” it is unclear exactly how the ruling will play out on campuses in California and beyond. That will likely depend in part, as law professor Benjamin Zipursky told The Chronicle of Higher Education, on whether there is ultimately “a finding by a jury that [UCLA was] negligent.”

Colleges evaluating the prospect of liability under this decision should not interpret the opinion as a license to infringe on students’ First Amendment rights. But FIRE’s experience is that where a court decision has the potential to impact free expression on campus, it usually does — and we will keep you posted.