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David French on Cert Petitions to U.S. Supreme Court in Important Student Standing Cases

David French, former FIRE President and now Senior Legal Counsel with the Alliance Defense Fund (ADF), writes over at Phi Beta Cons about ADF's petitions for writ of certiorari before the United States Supreme Court, filed last week, in the cases of Lopez v. Candaele and Rock for Life - UMBC v. Hrabowski. (UMBC is University of Maryland, Baltimore County.)

ADF is arguing that Lopez, a case decided by the United States Court of Appeals for the Ninth Circuit, and Hrabowski, a Fourth Circuit decision, threaten the ability of college students to bring constitutional challenges to their institution's speech codes when those policies by their very terms restrict protected expression. Because both federal appellate courts decided against the respective students in these two cases and denied them the opportunity to challenge their schools' speech codes, ADF is appealing to the Supreme Court and asking the Court to reverse the rulings and uphold the relaxed standing requirements that studentsand all other plaintiffshave traditionally enjoyed in First Amendment cases. Given the important nature of this issue, FIRE will be filing an amicus curiae (friend-of-the-court) brief before the Supreme Court in support of the petitions for cert in the coming weeks.

The case name of Lopez v. Candaele is no doubt familiar to many Torch readers, as we have written about it often here. FIRE, in fact, filed an amicus curiae brief before the Ninth Circuit in early 2010, arguing why student Jonathan Lopez should have his First Amendment rights vindicated in the face of the Los Angeles Community College District's unconstitutional sexual harassment policy. Lopez had been berated by the professor of his Speech 101 class for referencing his religious views and experiences during a speech assignment. As readers might recall, the professor refused to grade Lopez's classwork and memorably told him, "Ask God what your grade is."

Lopez initially won on his facial challenge to the sexual harassment policy in federal district court. However, in a decision at odds with decades of strong protection for the standing of students and all types of other First Amendment plaintiffs (in other words, the ability of such individuals to bring facial challenges to policies and regulations that restrict expression protected under the First Amendment, irrespective of their application and enforcement), the Ninth Circuit overturned the district court's ruling and held that Lopez had not suffered sufficient "injury" to challenge the policy. In so doing, the court raised the standards that students would have to meet in order to bring constitutional challenges to their university's speech codes.

As David writes, this outcome makes the petitions for writ of certiorari in Lopez and Hrabowski important:

The issue: Can students challenge university speech codes in court when those codes chill their free-speech rights, or must they wait until the university formally and officially punishes their speech? Until two recent decisions by the Ninth and Fourth Circuits, the answer to this question had been clear. Students could challenge unconstitutional policies that "chilled" their speech - even if the policies had not been enforced against them. This was and is the position of the Third, Sixth, and Seventh Circuits, as well as multiple federal district courts.

The reason for the conventional and traditional "standing" rules is simple and compelling. We place such value on free speech that we don't want citizens silencing themselves for fear of punishment. Most people are law-abiding, fewer still are constitutional scholars, and when they see policies that purport to ban "offensive" speech, they steer their words around the subjectively perceived sensibilities of their listeners. The effect on the marketplace of ideas - especially on campus - is profound. Virtually every campus has a very loud and vibrant victim/grievance community, and even the most tentative of dissenting statements can sometimes lead to extraordinarily punitive action.

It is crucial that students be able to challenge speech codes in the courts, especially when too many universities have shown themselves to be recalcitrant in reforming their policies and practices with respect to campus speech. If the courts, like the Ninth Circuit and the Fourth Circuit in these two cases, close off the judicial avenue to vindicating students' free speech rights, then students, and all proponents of free speech in academia, will have lost a powerful and necessary weapon. The stakes are high, as David writes:

It's hard to imagine a greater "chill" than the chill from university speech codes.  These policies (usually in the guise of anti-harassment or nondiscrimination rules) apply to literally every human interaction on (and sometimes off) campus. Any person can complain about any conversation, and no campus space or experience is excluded from their reach. And with speech codes at hundreds of universities, the stakes for free speech are very high indeed.

We will provide updates as we present our amicus brief to the Court, and wait to see if the Court will decide to hear these two cases.

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