FIRE's Certified Mailing to Public College and University Administrators, December 22, 2010

December 22, 2010

President E. Gordon Gee
The Ohio State University
205 Bricker Hall
190 North Oval Mall
Columbus, Ohio 43210

Sent via Certified U.S. Mail

Re: First Amendment Compliance

Dear President Gee:

I write today to notify you that one or more of The Ohio State University's policies unconstitutionally restricts freedom of expression, as guaranteed by the First Amendment and defined by established legal precedent. As such, FIRE has rated OSU a "red light" institution on Spotlight: The Campus Freedom Resource, our database of speech restrictions at colleges and universities across the country. FIRE strongly recommends reforming your institution's policies to ensure compliance with the First Amendment, by which OSU is both legally and morally bound. 

In the past year, federal courts have again struck down similarly unconstitutional speech codes maintained by public universities, continuing a string of losses for restrictive speech policies dating back over two decades. These recent defeats make clear once more that the First Amendment's protections fully extend to the public university campus-and by now, they should come as no surprise. Given the overwhelming consistency of the legal precedent, your administration must know that maintaining and enforcing speech codes that restrict First Amendment rights on campus violates clearly established law. See McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (declaring prohibition of "offensive" signs and conduct causing "emotional distress" unconstitutional); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (invalidating university sexual harassment policy due to overbreadth); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. Mar. 15, 2010) (invalidating "cosponsorship" policy due to overbreadth); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring "harassment by personal vilification" policy unconstitutional).

This past August, the United States Court of Appeals for the Third Circuit issued a ruling in McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) striking down speech codes maintained by the University of the Virgin Islands (UVI) on First Amendment grounds. In McCauley, the Third Circuit upheld the district court's invalidation of UVI's "Hazing-Harassment" policy, which prohibited "any act which causes ... mental harm or which ... frightens, demeans, degrades or disgraces any person." Reviewing policies the lower court had upheld, the court then found the university's regulation prohibiting "offensive" or "unauthorized" signs unconstitutional, noting that a "desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students." Turning to the university's policy banning conduct causing "emotional distress," the court determined the prohibition was "entirely subjective" and held that it "provides no shelter for core protected speech." The Third Circuit noted that under the unconstitutional policy, "[e]very time a student speaks, she risks causing another student emotional distress," concluding that this "heavy weight" does "substantial" damage to free speech on campus.

The Third Circuit's opinion in McCauley echoes its 2008 decision in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) striking down Temple University's former sexual harassment policy as unconstitutional. In DeJohn, the Third Circuit held that Temple's policy-which prohibited "expressive, visual, or physical conduct of a sexual or gender-motivated nature" when "such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or ... such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment"-was impermissibly overbroad because it prohibited constitutionally protected expression. The court held that because Temple's policy failed to require a showing of both severity and pervasiveness (i.e., "a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual's work"), the policy "provide[d] no shelter for core protected speech" and thus violated the First Amendment rights of all Temple students.

The Third Circuit was not alone in striking down unconstitutional speech codes in 2010. In Texas, a federal district court ruled that restrictions on student speech maintained by Tarrant County College (TCC) were unconstitutional. In deciding Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. Mar. 15, 2010), the court found that TCC's reliance on a policy prohibiting "disruptive activities" to restrict students from holding an "empty holster" protest violated the First Amendment. In addition to ruling that students are entitled to protest by engaging in symbolic speech in classrooms, hallways, and public areas of campus, the court ruled that TCC's sweeping prohibition on "cosponsorship," which forbade students and faculty from holding campus events in association with any "off-campus person or organization," prevented TCC students "from speaking on campus on issues of any social importance" and was therefore "overly broad" and facially unconstitutional. Furthermore, prior to this decision, the court had issued a temporary restraining order prohibiting TCC from quarantining protected speech to the school's tiny "free speech zone," holding that continued operation of the free speech zone would result in "immediate and irreparable injury" to students' free speech rights.

This past May, the United States Court of Appeals for the Ninth Circuit also issued a resounding affirmation of First Amendment rights on campus, holding in Rodriguez v. Maricopa County Community College District, 605 F.3d 703 (9th Cir. 2010) that public university administrators acted correctly in declining to punish a university professor for sending e-mails to coworkers that constituted protected speech and not actionable workplace harassment. In a unanimous opinion written by Chief Judge Alex Kozinski and joined by Circuit Judge Sandra Ikuta and Associate Justice Sandra Day O'Connor (sitting on the panel by designation), the Ninth Circuit determined that Professor Walter Kehowski's e-mails espousing his views on immigration, the "superiority of Western Civilization," and other contentious issues-however disagreeable to some, most, or even all-were not grounds for punishment because a public university, as a government actor, cannot lawfully punish protected speech. Chief Judge Kozinski wrote:

Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities-sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments-have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale.

Taken together, McCauley, Smith, and Rodriguez again send an unequivocal message: Public universities cannot restrict protected speech, whether by harassment policies, free speech zones, civility policies, or other regulatory contrivances. Indeed, the Supreme Court has long recognized that the First Amendment is of special importance on college campuses. The Court has made clear that the "college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,'" and that its precedents "leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities." Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted); Widmar v. Vincent, 454 U.S. 263, 268-69 (1981). The Court has further held that "the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.'" Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) (internal citation omitted).

As if further clarification of the legal obligations of public colleges and universities were needed, the Department of Education's Office for Civil Rights (OCR) made clear in a 2003 letter that "[n]o OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights." More recently, the United States Congress, voting in August 2008 to reauthorize the Higher Education Act with broad bipartisan support, included a "sense of Congress" resolution stating that "an institution of higher education should facilitate the free and open exchange of ideas"-the second time in a decade Congress has passed a resolution supporting the expressive rights of students at our nation's colleges and universities. See Pub. L. No. 105-244.

Unfortunately, FIRE's research demonstrates that far too many colleges and universities continue to inexplicably defy this broad and unequivocal affirmation of First Amendment rights on campus. A recent FIRE report, Spotlight on Speech Codes 2011: The State of Free Speech on Our Nation's Campuses, discovered that 67 percent of the 286 public universities examined nationwide maintain at least one policy that both clearly and substantially restricts freedom of speech, in contravention of legal precedent. Unfortunately, this shameful tally includes OSU. The policies at OSU that FIRE has determined to be constitutionally suspect may be found by visiting www.thefire.org/spotlight. After reviewing FIRE's website, we ask that you immediately begin making the necessary reforms to your institution's policies.

Although we do coordinate constitutional challenges to speech codes with the help of our Legal Network, a nationwide collection of attorneys dedicated to protecting free speech on campus, FIRE does not directly engage in litigation. Nevertheless, you must be aware that maintaining university policies that prohibit constitutionally protected expression is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which university administrators may be sued in their individual capacities for punitive damages. Given the sparkling clarity of the case law with regard to the unconstitutionality of speech codes at public universities, please be advised that claims of immunity from personal liability put forth by individual university administrators will likely be unsuccessful. The Supreme Court has made clear that government agents and employees are offered qualified immunity only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As a result, administrators may be held personally liable for continuing to maintain unconstitutional speech codes in violation of students' First Amendment rights.

The threat of being held personally liable for violating student rights is not hypothetical. A recent federal district court decision in Georgia illustrates the very real risk of losing qualified immunity administrators face when they deprive students of constitutional rights in contravention of clearly established law. This September, a federal district court judge issued an opinion denying a public university president qualified immunity in a civil rights lawsuit filed by a student expelled for engaging in protected expression without receiving notice of the charges or a hearing. Because the president had disregarded clearly established law regarding the rights of students facing disciplinary action, the court found that he had "caused [the student] to be deprived of his rights" and was not entitled to the defense of qualified immunity. As a result, the president is now personally liable for punitive damages owed to the student. (The case, Barnes v. Zaccari, No. 1:08-cv-00077-CAP (N.D. Ga. Sept. 3, 2010) is currently before the United States Court of Appeals for the Eleventh Circuit on appeal.) Again, given the consistent defeats unconstitutional speech codes have been dealt in federal and state courts over the past two decades, administrators sued for maintaining unconstitutional speech codes will likely be unable to claim qualified immunity in their defense.

The importance of free speech at public universities cannot be underestimated. In striking down the University of the Virgin Islands' speech codes in McCauley, the Third Circuit observed that "[m]odern-day public universities are intended to function as marketplaces of ideas, where students interact with each other and with their professors in a collaborative learning environment." McCauley, 618 F.3d at 244. It is precisely this conception of the modern university as a vital marketplace of ideas that is betrayed by the continued prohibition of protected speech on campus. I ask that you act swiftly to ensure that your students receive the full right to freedom of expression guaranteed by the First Amendment and necessary for a true liberal education.

FIRE stands ready to help The Ohio State University make the necessary reforms to its policies. To that end, I have enclosed a copy of Correcting Common Mistakes in Campus Speech Policies, our guide to identifying and remedying common prohibitions on protected speech. Do not hesitate to contact FIRE if we can be of further assistance.

I thank you for your attention to this important matter.

Sincerely,

William Creeley
Director of Legal and Public Advocacy

Encl.

cc:
Christopher M. Culley, Vice President and General Counsel, The Ohio State University

(Note: FIRE's letter to Ohio State was used as an example of one of FIRE's 296 letters to public college and university administrators.)