NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
A federal appeals court on Friday rejected a lawsuit against the Los Angeles Community College District arising out of the way a public speaking professor harshly criticized a student presentation that opposed gay marriage.
The community college district has not defended the professor’s conduct, and the appeals court noted "serious concerns raised by policies that regulate speech on college campuses," but the ruling upheld the community college district’s sexual harassment code. The U.S. Court of Appeals for the Ninth Circuit found that Jonathan Lopez, the student who sued, presented arguments that "come to the very edge of showing injury in fact," but that he failed to show actual damage from the sexual harassment code — and that as a result he lacked the legal right to sue.
Given that critics of campus harassment rules have challenged many of them through suits by plaintiffs like Lopez, the standards for legal standing are a topic of concern to many who aren’t involved in the Lopez case.
The lawsuit concerns what happened in a public speaking course at Los Angeles City College on Nov. 24, 2008, shortly after the passage in California of Proposition 8, which banned gay marriage in the state.
John Matteson, the professor, had asked students to give a speech on the topic of their choice. Lopez, who describes himself as a devout Christian, spoke about issues of faith and God. According to the appeals court’s summary of the facts in the case, Lopez touched on the issue of gay marriage by reading Bible passages and quoting from the dictionary, at which point Matteson called his student a "fascist bastard" and told the class that anyone who was offended could leave. Nobody left and Matteson then dismissed the class.
A few days later, Lopez turned in to Matteson a list of possible topics for a future speech, and while Matteson gave Lopez an A on the list, he wrote: "Remember — you agree to Student Code of Conduct as a student at LACC."
While Matteson — who has not commented on the case — referred to the code, the college notably did not use it to take action against Lopez. According to the court’s summary of the facts in the case, once Lopez (with legal assistance) started to complain about what had happened, the college assured him that he would be treated fairly. Not only were no charges brought against him, but some disciplinary action was taken against Matteson (citing confidentiality requirements, the college hasn’t said what that was). Lopez received an A for the course.
The appeals court ruled on Lopez’s challenge to the harassment policy as being overly broad. Parts of the harassment policy — banning requests for sexual favors, for example — have not been controversial. But the challenge has focused on interpretations by district officials of the definition of sexual harassment, and in particular of the parts of that definition that critics say would regulate legitimate speech.
Specifically, the policy has been defined by district officials to cover "generalized sexist statements, actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men. Examples include insulting remarks; intrusive comments about physical appearance; offensive written material such as graffiti, calendars, cartoons, emails; obscene gestures or sounds; sexual slurs, obscene jokes, humor about sex."
The ruling went out of its way to stress that while the judges felt legally bound to focus on the issue of standing, they saw concerns about college policies regarding speech. "Formal and informal enforcement of policies that regulate speech on college campuses raises issues of profound concern," the decision said.
A federal district judge granted an injunction to stop enforcement of the policy, citing its breadth and noting that students such as Lopez might feel constrained in expressing legally protected views. "As a student at LACC, he is subject to the policy. Plaintiff’s interest in the policy is more than a general interest shared with the student body at large. He alleges that he is a Christian who is duty-bound to share his religious beliefs with other students. However, he refrains from doing so for fear of punishment under the policy," said the decision granting the injunction.
The appeals court decision, while agreeing that students might be able to challenge a harassment policy based on realistic feelings that their intended statements would get them punished, said that wasn’t the case here. The decision noted that Lopez had been assured that the college does respect the First Amendment and planned no action against him for his statements. "[T]he inapplicability of the plain language of the sexual harassment policy to Lopez’s speech, and the absence of any official interpretation of the policy as applying to Lopez’s speech, cut against the existence of a credible threat of enforcement," said the decision.
Officials of the Alliance Defense Fund, which backed Lopez and urged the appeals court to find the harassment code unconstitutional, could not be reached for comment.
Another group that supported Lopez is the Foundation for Individual Rights in Education, which filed a brief in the case. "If the lower court’s opinion is reversed, university administrators will be encouraged to silence merely unwelcome student speech by maintaining unconstitutional speech codes, despite the fact that the vast majority of such speech is entirely protected by the First Amendment," the brief said.
"The Supreme Court has warned that ‘[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation…. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.’ If this court overturns the district court’s decision, the resulting opinion will act as this ‘strait jacket,’ resulting in a creeping uncertainty about the status of protected speech on campus. Students will surely self-censor rather than risk punishment for running afoul of unconstitutional speech codes like the one defended in the present appeal by LACCD. Such a chill is nothing less than an existential threat to open debate and discussion at our nation’s colleges, and, therefore, to the marketplace of ideas itself."
Will Creeley, director of legal and public advocacy at FIRE, said via e-mail that the group was "disappointed" by the ruling. "While recognizing the profound importance of free expression on campus, the court nevertheless ignores longstanding precedent and sets the bar for standing unreasonably high," Creeley said. "Students like Jonathan Lopez enjoy full First Amendment rights — and must be allowed access to the courts when those rights are threatened by unconstitutional speech codes."