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Two Big Legal Victories in 2010 Have FIRE Primed for Productive 2011

Foundation for Individual Rights and Expression

As FIRE's director of legal and public advocacy, I have the distinct pleasure of working with a supremely talented team of attorneys in defense of free speech, due process, and academic freedom on college campuses nationwide. Like all FIRE employees, FIRE's lawyers are dedicated to ensuring that our colleges and universities respect student and faculty rights to free inquiry, freedom of conscience, and freedom of assembly, among other basic liberties. But as attorneys, we have the unique opportunity and responsibility to use the law to further FIRE's mission.

While FIRE does not engage in direct litigationwe leave that job in the capable hands of the volunteer attorneys who comprise our national Legal Network—we do coordinate lawsuits and work through other legal avenues to make sure that civil liberties are taken seriously in higher education. As we look ahead to the new year, I'm proud to report that in 2010, FIRE's legal team won several crucial battles. It's worth reviewing two of these big wins as we prepare for what will hopefully be an equally productive 2011.

First, FIRE added another victory (the seventh!) to our successful Speech Code Litigation Project last March, as a federal district court in Texas ruled that restrictions on student speech maintained by Tarrant County College (TCC) violated the First Amendment. The college had been a FIRE target since 2008, when FIRE first wrote to protest TCC's refusal to allow students to hold a symbolic "empty holster" protest on campus. (The empty holster protests are organized by student group Students for Concealed Carry on Campus and are intended as a protest against restrictions on the right to bear arms on campus. They have been held at campuses nationwide without incident, and, to FIRE's knowledge, were only banned at TCC.) TCC shamefully repeated its censorship of obviously symbolic speech the following year, as well--but this time, students Clayton Smith and John Schwertz responded by filing a civil rights lawsuit in federal court, with the assistance of FIRE and the American Civil Liberties Union of Texas.

Filed in November 2009, the lawsuit was successful right from the start: Within days, the district court granted Smith's and Schwertz's motion for a temporary restraining order to prohibit TCC from continuing to restrict student speech to a minuscule "free speech zone." The court properly found that maintaining the free speech zone for even a day longer would result in "immediate and irreparable injury" to the First Amendment rights of TCC students. TCC responded to this decisive loss by revising its restrictions on speechbut in so doing, the school only made things worse by adding a new ban preventing student groups from co-sponsoring events with off-campus organizations. This new restriction was in turn struck down by the district court in its opinion last March, with the judge noting that he "cannot imagine how the provision could have been written more broadly." The district court also found that TCC's invocation of its ban on "disruptive activicties" was unconstitutional as applied to Schwertz and Smith, as TCC had failed to provide any evidence that their censorship of symbolic speech in this instance was based on anything other than speculation and fear.

Smith's and Schwertz's victory in court illustrates several key lessons for FIRE and our supporters. For one, it's another reminder that legal action (or the credible threat of such) is sometimes the only way to vindicate student rights in the face of repeated and persistent censorship. FIRE had warned TCC several times that the empty holster ban was unconstitutionalincluding a letter sent as part of our 2008 national mailing to red- and yellow-light institutions, an effort expanded upon just a few weeks agobut the school didn't listen until it was too late. Unfortunately for Texas taxpayers, the second lesson here is that willful ignorance such as TCC's carries a steep price tag: $240,000 in this case. That's how much in attorneys' fees the district court ended up awarding Fort Worth lawyer Karin Cagle, her fellow counsel David Broiles, and the ACLU of Texas.

TCC isn't the only school to be burned in court after defending indefensible First Amendment practicesthe University of Wyoming and the Georgia Institute of Technology (Georgia Tech) have also paid the price in recent yearsand unfortunately, I can't help but think that it won't be the last. The silver lining for taxpayers here is that colleges often formulate policies and practices as an exercise in risk management. So, as examples of the high price of violating student rights continue to stack up, whether in attorneys' fees, as at TCC, or via the piercing of the defense of qualified immunity, like at Valdosta State University, universities should increasingly decide that fighting against the Bill of Rights in federal court simply isn't worth the money.

The third lesson to be drawn from 2010's win against TCC is that forming alliances with other groups interested in defending student rights can be of immense value and utility to FIRE. As a uniquely nonpartisan organization, FIRE is well-positioned to work with allies from across the ideological spectrum to vindicate the rights of students, and sometimes this tag-team approach is exactly what's needed. In this case, the good folks at the ACLU of Texas were instrumental in securing a just result for Smith, Schwertz, and all TCC students, building on FIRE's existing efforts and prevailing in court.

The other 2010 victory that will resonate into the new year and beyond arrived in August courtesy of the United States Court of Appeals for the Third Circuit, which handed former student Stephen McCauley a decisive win in his First Amendment lawsuit against the University of the Virgin Islands (UVI). Appealing a 2009 district court decision that struck down UVI's "Hazing-Harassment" policy on First Amendment grounds but left other portions of the school's speech code intact, McCauley successfully challenged several policies maintained by UVI that restricted protected speech. McCauley's appeal also prompted an important Third Circuit correction of the district court's flawed analysis, which improperly assessed collegiate speech codes through reference to court decisions governing grade school and high school speech standards. 

While McCauley did not file his lawsuit in coordination with FIRE, my FIRE colleagues and I authored an amicus curiae brief on his behalf that we filed with the Third Circuit in December of 2009. Gratifyingly, many of the arguments that we made in the amicus brief were adopted by the Third Circuit panel in its unanimous opinion. Our brief argued that as a public university, UVI could not lawfully maintain policies that restricted students from displaying "offensive" or "unauthorized" signs, or from engaging in conduct that caused another student "emotional distress." The Third Circuit agreed, striking down both policies and observing that a "desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students."  We also argued that per the Third Circuit's own reasoning in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), UVI's policies were unconstitutional because they failed to include any objective standard, or to restrict only that speech not protected by the First Amendment. Again, the Third Circuit agreed with us, holding that UVI's policy prohibiting conduct causing "emotional distress" was "entirely subjective" and ruling that it "provides no shelter for core protected speech." The court noted that under this policy, "[e]very time a student speaks, she risks causing another student emotional distress"a "heavy weight" that causes "substantial" damage to UVI students' right to free expression.

Having a federal appellate court issue its second opinion in two years striking down a public university's speech codes was exciting enough, as I was happy to note in a special post for The Legal Satyricon back in August. (The other case was 2008's DeJohn.) But what made the victory in McCauley v. University of the Virgin Islands even better was the fact that the Third Circuit unequivocally rejected the university's argument that college students may be subjected to the same kind of speech restrictions as their grade school and high school counterparts. Our brief addressed this faulty argument at length, and all of us here at FIRE were extremely pleased to see the court's opinion do the same. With reference to "the differing pedagogical goals of each institution, the in loco parentis role of public elementary and high school administrators, the special needs of school discipline in public elementary and high schools, the maturity of the students, and, finally, the fact that many university students reside on campus and thus are subject to university rules at almost all times," the court found that "[p]ublic universities have significantly less leeway in regulating student speech than public elementary or high schools." FIRE has been saying as much for a long time now, so to have a federal circuit court explicitly and emphatically agree with us in a precedential decision is a great achievement--and one that FIRE lawyers and members of our Legal Network will be able to cite as persuasive authority in years to come.

Victory in McCauley is also important because it demonstrates how FIRE attorneys can influence the evolution of legal precedent via amicus briefs, even without coordinating a case directly. By filing amicus briefs in cases that we deem important to our mission, FIRE can use our legal expertise to advance arguments that might not otherwise get sufficient hearing in a proceeding. Further, thanks to our eleven (going on twelve!) years of experience defending student rights, FIRE is especially well-equipped to present examples of the widespread abuses of speech codes in a way that no other organization can. Having FIRE file an amicus brief prevents colleges from downplaying the harm caused by unconstitutional policies, or dismissing the importance of First Amendment protections for students. 

I'm proud of the work FIRE attorneys did in 2010. Besides the two wins in Smith v. Tarrant County College District and McCauley v. University of the Virgin Islands, we also fought the good fight on behalf of freedom of association in Christian Legal Society v. Martinez, as Erica detailed here on The Torch recently; published still more groundbreaking legal scholarship, as Azhar described in this space last week; offered our first Continuing Legal Education courses in New York and Pennsylvania, with more on the way; sent out another certified mailing to administrators at red- and yellow-light institutions acorss the country; published our latest comprehensive survey on the state of free speech on campus; followed up our 2009 Correcting Common Mistakes in Campus Speech Policies pamphlet with Challenging Your College's Speech Code, a new brochure designed to educate students about how to bring constitutional challenges to their university's speech codes; and addressed crowds of students, faculty, and administrators at conferences and campuses across the country. I know I'm forgetting some other accomplishments, but you'll have to excuse mewe've been busy! And until FIRE is successful in our mission to restore basic individual rights to our nation's colleges and universities, we will remain so. Of course, we'll keep you posted on our progress throughout the new year right here on The Torch.

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