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Another One Bites the Dust: A Closer Look at Lopez and the Latest Unconstitutional Speech Code to Fall in Court

One week ago today, a federal judge for the Central District of California issued a preliminary injunction prohibiting the Los Angeles Community College District from publicizing or enforcing its sexual harassment policy while student-plaintiff Jonathan Lopez's constitutional challenge against the policy proceeds. As Robert reported on Wednesday, Lopez's legal action against the district was prompted by an ugly classroom incident in which one of Lopez's professors called him a "fascist bastard" and refused to assign him a gradetelling him, "Ask God what your grade is"after Lopez delivered an in-class speech about his Christian faith. With assistance from the Alliance Defense Fund, including ADF Senior Counsel and former FIRE President David French, Lopez filed suit, challenging the district's restrictive speech codes as well as his treatment in class.

This afternoon, I'd like to discuss a few points about the court's decision, in no particular order.

1. Hey, Administrators! For the Tenth Time: Speech Codes are Unconstitutional

U.S. District Judge George H. King's order granting Lopez's motion for preliminary injunction means that yet another unconstitutional speech code has fallen in federal court on constitutional grounds. For those keeping score at homeand for administrators at the shockingly high percentage (77%) of public universities that still maintain unconstitutional speech codesthis is the tenth speech code masquerading as a harassment policy that has been found unconstitutional in court.

Here's the list, not including Lopez: DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (sexual harassment policy); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) ("discriminatory harassment" policy); Coll. Republicans v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) ("intimidation" and "harassment" policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (sexual harassment policy); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003) ("racism and cultural diversity" policy); Booher v. N. Ky. Univ. Bd. of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998) (sexual harassment policy); UWM Post, Inc. v. Bd. of Regents, 774 F. Supp. 1163 (E.D. Wisc. 1991) ("discriminatory harassment" policy); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) ("discrimination and discriminatory harassment" policy); Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct., Feb. 27, 1995) ("harassment by personal vilification" policy).

That's a veritable wall of unbroken legal defeats for speech codeswhich means that now it's even more difficult for administrators to claim they just didn't know that their policies were violating the First Amendment. Because the precedent here is so clear, and because the law is now so thoroughly established, administrators maintaining unconstitutional speech codes risk losing qualified immunity when sued for violating student rights. Losing qualified immunity means that administrators may be held personally liable for damages because they should have known that their policies and decisions violated the law. In this regard, the judge's order in Lopez is yet another wake-up call for those public colleges and universities who refuse to guarantee First Amendment freedoms to their students. Notice to administrators: If you end up in court trying to defend an unconstitutional speech code, you will loseand it might cost you personally.

2. In Lopez, "Examples" of Harassing Behavior Are Correctly Read as Part of the Policy

FIRE's Spotlight database of speech codes has long documented lists of "examples" of harassing behavior found in university harassment policies in addition to the text of the policies themselves. We do so because we believe that students reading the policies pay attention to the examples as well as the actual policy when trying to determine what speech is and is not covered. Often, the "examples" will include clearly protected speech. For instance, Davidson College's sexual harassment policy provides "verbal examples" of harassment that include, among other things, "degrading words used to describe an individual or group of persons," "hostile personal or gender related remarks," "derogatory or dismissive comments," "comments or inquiries about dating," and "patronizing remarks," such as calling an adult "girl," "boy," "hunk," "doll," "honey," or "sweetie." This list of examples is misleading. While it's possible that these types of speech might become a component of sexual harassment if they rose to the necessary level of severity and pervasiveness, most offensive or derogatory comments (and terms of endearment) are, in fact, protected speech. Telling students that an isolated "patronizing remark," for example, constitutes actionable sexual harassment, as a policy like Davidson's does, means that rational students will self-censor rather than risk punishment for engaging in protected speechand that kind of chilling effect violates the First Amendment.

Thankfully, Judge King's order recognizes this fact explicitly. The district's sexual harassment policy, like Davidson's, includes a list of "examples":

The four most common types of sexual harassment are:

1.      Sexual Harassment based on your gender: This is 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.

In striking down the policy as unconstitutionally overbroad (i.e., prohibiting a substantial amount of protected speech), Judge King specifically singles out these "examples":

[T]he Policy reaches constitutionally protected speech that is merely offensive to some listeners, such as discussions of religion, homosexual relations and marriage, sexual morality and freedom, polygamy, or even gender politics and policies. Indeed, the LACC's website indicates that sexual harassment can include "sexist statements . . . or degrading attitudes/comments about women or men." This could include an individual's outdated, though protected, opinions on the proper role of the genders. While it may be desirable to promote harmony and civility, these values cannot be enforced at the expense of protected speech under the First Amendment. Thus, the Policy is unconstitutionally overbroad. [Internal citations omitted.]

Judge King understands that when it comes to harassment policies in student handbooks, the supplemental text augmenting the specific text of the policy has just as much of an effect on student speech as the policy itself, and as such should properly be considered part of the policy.

3. The Problem With Citing Tinker

Despite reaching the correct conclusion about the district's unconstitutional speech code, Judge King's order does contain a worrying note in its reasoning. In determining that the policy is overbroad, Judge King cites the landmark student speech case Tinker v. Des Moines School Dist., 393 US. 503 (1969). Reviewing possibilities for narrowing the policy so as to cure its overbreadth, Judge King writes:

[W]e could excise the word "purpose" from the Policy so that it reads: "(3) The conduct has the effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile or offensive work or educational environment. . . ." However, that does not cure the constitutional infirmities. A "negative impact" upon the work or academic performance of another does not necessarily justify restricting First Amendment freedoms. Rather, under Tinker, student speech must "collide with the rights of others" to be proscribed, even when the topic of the speech is controversial subjects. 393 U.S. at 511 (1969). Speech that has a "negative impact" does not necessarily collide with the rights of others, and cannot be broadly proscribed.

But the problem here is that Judge King is citing Tinkera case involving the rights of grade school students, who are minorsas providing an applicable ceiling ("student speech must 'collide with the rights of others' to be proscribed") for the speech rights of adult college students. This is dangerous because, as recent Supreme Court opinions like Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007) (holding that a high school could punish a student for off-campus speech that could be seen as promoting drug use) have made all too clear, grade school and high school students do not enjoy the robust protection of the First Amendment.

As my colleague Kelly Sarabyn explores in masterful depth in her recent law review article, The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students' First Amendment Rights in the Texas Journal on Civil Liberties & Civil Rights, federal courts have split on the question of whether the lower standards of regulation for high school speech may be imported into the college arena, despite the fact that the Supreme Court has consistently held that speech on college campuses enjoys the full protection of the First Amendment. So by applying Tinker's grade school standards to the college regulations at issue in Lopez, the district court may help to erode the unique protection of student speech at colleges and universities the Supreme Court has consistently recognized. Doing so is dangerous, for it confuses the distinct characteristics of high schools and colleges and opens the door to future conflation of the twowhich, as cases like Hosty v. Carter, 412 F.3d 731, 740 (7th Cir. 2005) demonstrate all too well, is to the great detriment of the speech rights of college students. Simply put: When it comes to speech rights, college students enjoy the same rights as all citizens. Grade and high school students do not. Confusing the two standards, as the court does in passing here, hurts college student rights, even if the correct result was reached in this case.

We'll have more on Lopez in the coming days, so stay tuned.

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