FIRE Files Amicus Brief in ‘McCauley v. University of the Virgin Islands’

December 22, 2009

Today, FIRE filed an amicus curiae brief in the case of McCauley v. University of the Virgin Islands. FIRE’s brief asked the United States Court of Appeals for the Third Circuit to clarify its landmark decision in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008), and reverse a ruling by a federal district court upholding several challenged speech policies maintained by the university. FIRE was represented in the filing by attorney L. Theodore Hoppe, Jr., a member of FIRE’s Legal Network.

Although the district court’s ruling did invalidate the University of the Virgin Islands’ (UVI’s) "Hazing-Harassment" policy as unconstitutionally overbroad, a finding compelled by DeJohn, the district court erred by allowing two other flawed policies to remain intact. As FIRE’s brief argues:

[D]espite the guidance this Court provided in DeJohn, and because of inconsistencies in the district court’s reasoning, the district court failed to strike down the overbroad policies maintained by the University of the Virgin Islands and challenged by plaintiff-appellant in the present case. While the lower court correctly invalidated one challenged policy, relying on this Court’s overbreadth analysis in DeJohn, it failed to identify similar defects in two other policies challenged. To preserve the clarity of DeJohn‘s defense of the First Amendment on public college campuses, this Court must correct the district court’s oversight.

Compounding its errors, the district court’s opinion impermissibly analyzed collegiate speech restrictions with reference to court decisions concerning high school speech standards. This conflation of speech standards is based on a fundamental misunderstanding of DeJohn, which clearly distinguished the expansive speech rights enjoyed by college students from the far greater restrictions courts have deemed acceptable in the high school context. Citing scholarship penned by FIRE’s former Justice Robert H. Jackson Legal Fellow Kelly Sarabyn, FIRE’s brief points out the dangers inherent in conflating these two distinct standards—dangers we’ve discussed before here on The Torch:

Treating the First Amendment rights of high school students and university students as functionally equivalent infantilizes college students and deprives them of the unique educational opportunities available at colleges. Although the circuits have split on how to differentiate speech cases involving high school versus university students, see Kelly Sarabyn, The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students’ First Amendment Rights, 14 Tex. J. C. L. & C.R. 27 (2009), this Court in DeJohn rejected the view that the same standards apply to both sets of students. DeJohn explained that speech that "cannot be prohibited to adults may be prohibited to public elementary and high school students" because elementary and high schools possess "special needs of school discipline." 537 F.3d at 315 (emphasis in original). By contrast, this "need for order" is inapposite at colleges, and "administrators are granted less leeway in regulating student speech than are public elementary or high school administrators." Id. at 314, 316.

In essence, FIRE’s brief in McCauley urges the Third Circuit to preserve the vitality of its ruling in DeJohn. The district court likely overlooked the fact that DeJohn did not need to specifically detail the more expansive rights given to college students because Temple University’s policy failed even under the high school standards. FIRE’s brief further argues, based on its ten years of experience fighting unconstitutional speech codes, that the district court’s decision will embolden future college administrators to suppress protected speech.

I encourage Torch readers interested in the case to check out our brief. The Third Circuit’s decision in McCauley has the potential to either strengthen or erode the import of DeJohn, a seminal case protecting free speech from universities’ harassment policies, and one that has already been followed by lower courts in several circuits.