FIRE Asks Ninth Circuit to Grant Rehearing in ‘Ask God What Your Grade Is’ Case

By October 12, 2010

Today, we filed a friend-of-the-court brief urging the Ninth Circuit to rehear Lopez v. Candaele. In Lopez, a federal district court had found the Los Angeles Community College District’s (LACCD’s) speech code to be unconstitutional. However, the Ninth Circuit last month overturned that decision by ruling that student Jonathan Lopez had not been sufficiently harmed by LACCD’s speech code to bring suit. As our press release explains, this decision placed the ability to fight unconstitutional speech policies in jeopardy in the nine states that comprise the Ninth Circuit.

FIRE’s brief argues that the Ninth Circuit has erected an impossibly high barrier to students challenging unconstitutional policies. It also points out that the Ninth Circuit’s decision differs sharply with opinions issued by the Third and Sixth Circuits in similar cases.

Lopez’s lawsuit against LACCD was filed in the United States District Court for the Central District of California in February 2009 by attorneys from the Alliance Defense Fund (ADF). Prior to filing suit, Lopez had been berated in his Speech 101 class by his professor, who disagreed with Lopez’s reference to his religious views and experiences. The professor refused to grade Lopez’s classwork, telling him to "Ask God what your grade is."

In July 2009, United States District Judge George H. King granted Lopez a preliminary injunction barring LACCD from enforcing its sexual harassment policy, declaring that the policy violated the First Amendment rights of Lopez and his fellow students by "prohibit[ing] a substantial amount of protected free speech." LACCD’s code prohibits, among other things, "generalized sexist statements" and "actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men." In September 2009, Judge King denied LACCD’s motion for reconsideration of his earlier ruling. Judge King observed that LACCD "ha[d] shown no valid reason" to overturn the injunction, and he characterized LACCD’s arguments as "scattershot and disjointed."

FIRE previously filed a brief in January asking the Ninth Circuit to uphold the lower court’s decision on appeal. However, the Ninth Circuit ruled in September that Lopez did not possess "standing" to challenge LACCD’s speech code, focusing on the fact that LACCD did not enforce its policy against Lopez. The court decided that Lopez’s treatment by his professor did not count as a harm sufficient to justify his challenge of LACCD speech policies. To reach this result, the court discounted the facts that Lopez’s professor invoked LACCD’s speech policies in reprimanding him for his protected speech and that Lopez’s classmates sought to have him punished under the speech code. FIRE’s brief, filed by FIRE Legal Network attorney Christopher Arledge of One LLP, points out that Lopez’s fear of punishment under the code is credible and reasonable, given the strong reaction his speech had already provoked and the abuse of speech codes nationwide.

As FIRE followers may know, in recognition of the importance of free speech, courts have long held that plaintiffs bringing First Amendment claims are subject to relaxed standing requirements so that unconstitutional restrictions on speech are not allowed to chill expression. FIRE’s brief demonstrates that the Ninth Circuit’s ruling is a sharp departure from the relaxed standing requirement employed by the Third Circuit in the 2010 case McCauley v. University of the Virgin Islands and the Sixth Circuit in the 1995 case Dambrot v. Central Michigan University. In both McCauley and Dambrot, students challenging unconstitutional speech restrictions were granted access to judicial remedies after demonstrating that they were subject to the policies.

The Ninth Circuit’s decision last month, if allowed to stand, would therefore create a dangerous precedent. As Will astutely states in today’s press release, "Depriving students of the ability to challenge speech codes in court is a surefire way to guarantee that the chilling effect on speech currently gripping so many of our campuses gets worse, not better." Absolutely. We are therefore hopeful that the Ninth Circuit will grant a rehearing in Lopez and correct its error. Student rights in the Ninth Circuit hang in the balance.