One of the latest institutions to be sued over an unconstitutional speech code is Georgia Tech, which was sued in March by former FIRE president and current Legal Network member David French and the Alliance Defense Fund. Georgia Tech’s speech code, which earned a “red light” rating on FIRE’s Spotlight, has some serious constitutional problems. For instance, “acts of intolerance” such as “[d]enigrating written/verbal communications (including the use of telephones, emails and computers) directed toward an individual because of their characteristics or beliefs” can result in disciplinary action. Such a rule is far too vague to be consistently enforced and in any case would ban a great deal of constitutionally protected speech.
The lawsuit, Sklar v. Clough, also alleges an interesting charge of establishment of religion. According to the complaint (PDF), Georgia takes an explicit religious view on homosexual behavior in violation of their constitutional obligation to be neutral with regard to religion. Georgia Tech’s allocation of student fees is also challenged in the suit. Its policies provide that “Partisan Political Activities” and “Religious Activities” may not be funded with student fees. This would appear to violate both Rosenberger v. Rectors of the University of Virginia, a Supreme Court case in which the Court determined that a student newspaper could not be denied funding because of its “religious” views, and Board of Regents of the University of Wisconsin v. Southworth, in which the Supreme Court determined that mandatory student fees must be allocated on a “viewpoint neutral” basis. It’s hardly “viewpoint neutral” to determine that political and religious views, but not other views, should be denied funding. As FIRE has said before, students whose main interest lies with golf should not be treated better than those interested in Judaism.
Georgia Tech is not above the Constitution. Since it apparently didn’t realize that before, the odds are good that it will be forced to do so now. The lawsuit serves as just another reminder to colleges and universities that our fundamental freedoms extend to the public college campus.