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Lawsuit Already Shakes Speech Codes at Shippensburg University

SHIPPENSBURG, PA, August 22, 2003—As part of its nationwide effort to free American public colleges and universities from unconstitutional restrictions on speech, the Foundation for Individual Rights in Education (FIRE) and its Legal Network have challenged Shippensburg University’s speech codes in federal court. Although a ruling has yet to be issued, Shippensburg finds itself unable to defend in public what it wished to do in private and already has begun dismantling its policies. In the four months since FIRE Legal Network attorneys David A. French and William Adair Bonner filed the suit on behalf of students there, the university has eliminated some of the most blatantly repressive language in its policies.

“This is already a victory for free speech and academic freedom on American campuses,” said FIRE director of legal and public advocacy, Greg Lukianoff. “The changes that Shippensburg has made to its policies amount to an admission that the codes it published, distributed, and put on its website—until our lawsuit—were unconstitutional. These changes, however, must be only the beginning. The speech codes that remain still punish expression that is protected by the Constitution. Shippensburg must fulfill its obligations to the First Amendment.”

On April 23, 2003, FIRE inaugurated its national litigation campaign against unconstitutional speech codes at public universities when FIRE Legal Network attorneys French and Bonner filed suit against Shippensburg. In response, the university eliminated “demeaning” expression from its Code of Conduct’s catalog of punishable speech. It also removed some unlawfully overbroad language from its “Racism and Cultural Diversity” policy, which previously defined punishable harassment as any “unsolicited, unwanted conduct which annoys, threatens, or alarms a person or group.”

While the university now claims that the worst language from its “Racism and Cultural Diversity” policy was removed in October 2001, the unmodified version of the policy appeared in the official student catalog for 2002-2003 and on the university’s website as recently as April 8, 2003. The university further claims that students at Shippensburg were informed of the change to the code. In fact, the only evidence that the university provided to the court in support of its claim that the policy had been changed nearly two years earlier was a printout (below) of a “Racism and Cultural Diversity” policy statement that was changed on the website after FIRE’s suit had been filed. FIRE’s research reveals that as of April 8, 2003—nearly 18 months after the university claimed to have changed the policy—the code had yet to be altered. According to the printout, the website had been last modified on May 8, 2003, indicating that the change to the page was likely only disseminated after the legal challenge.

“Shippensburg’s claim that it changed or removed some of the most blatantly unconstitutional language from its policies nearly two years ago is at best irrelevant and at worst dishonest,” Boston attorney and FIRE Co-Director Harvey A. Silverglate said. “If university administrators truly intended to change the policy, why didn’t they change it in the student handbooks or on the website? Why didn’t they inform their campus, as is their obligation? It would appear that Shippensburg wanted its students governed by the unconstitutional code and now wants to present a more benign face to the court when confronted with the lawsuit. It's the old trick of having two versions—one that you use, and one that is your public facade. That doesn’t work on matters of constitutional protection.”

French has produced evidence that Shippensburg’s unconstitutional speech codes have been enforced against students. In an affidavit, plaintiff Walter Bair testified that the “University’s resident director” ordered him and other resident advisors to remove “messages or flyers that were hostile to Osama bin Laden and/or supportive of the American military effort in Afghanistan” from students’ doors following the terrorist attacks of September 11. Bair testified that the resident director informed him that such materials “were offensive to other students and violated the Code of Conduct.” See plaintiff Walter Bair’s affidavit.

“Bair’s affidavit contradicts the claim that these speech codes were not enforced,” Silverglate said. “Furthermore, it reveals the danger inherent in all university speech codes. Not only do they chill discussion and debate by their very presence, but they are a weapon that administrators can use in any ‘crisis,’ when, in fact, one most desperately needs free speech and open discourse.”

Despite Shippensburg’s cosmetic efforts, the university’s codes remain unconstitutional. The most current web version of the university’s “Racism and Cultural Diversity” policy statement, for example, states that “Shippensburg University's commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors [emphases added],” as if a public university could make beliefs and views an obligation. Shippensburg’s speech code also punishes “inflammatory” speech, speech that “provokes,” and speech that causes “subordination.”

“FIRE will continue its efforts until these shameless infringements on individual liberty and constitutional protections are eliminated. The inadequate changes that the university has made to its speech codes are a cynical and unsuccessful attempt to transform its clearly unconstitutional policies into regulations that might just barely be constitutional,” Silverglate said. “Instead of abolishing all of its unlawful restrictions of personal and academic freedom, Shippensburg fights for every inch of repression it can hold on to. The effort leaves Shippensburg far short of constitutional requirements.”

Attorneys French and Bonner filed a response to Shippensburg’s motion to dismiss the lawsuit, and also filed a motion for a preliminary injunction. Judge John E. Jones, III, of the U. S. District Court for the Middle District of Pennsylvania, has scheduled oral arguments for Monday, August 25.

The Foundation for Individual Rights in Education is a nonprofit educational foundation. FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, freedom of conscience, and due process on our nation’s campuses. FIRE has challenged speech codes at three colleges and universities thus far in its speech code litigation project. Please visit FIRE’s website to read more.

Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473;
David A. French, Attorney: 859-231-8500;
Harvey A. Silverglate, Co-Director, FIRE: 617-661-9156;

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