Third Circuit to Public Colleges: Enough With the Speech Codes

But my personal enthusiasm notwithstanding, McCauley has received scant notice, garnering little more than cursory mention from the Chronicle of Higher Education and Inside Higher Ed. Maybe all the reporters working the college beat are on vacation; maybe the idea of a university in the Virgin Islands strikes assignment editors as inherently suspicious. Whatever the reason, the lack of coverage is regrettable: McCauley is a very important ruling for free speech on campus.

To put McCauley‘s significance in proper context, let’s first review the Third Circuit’s other recent defense of student expression. In DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), the Third Circuit knocked out Temple’s former sexual harassment policy, which prohibited “expressive, visual or physical conduct of a sexual or gender-motivated nature” that has “the purpose or effect of unreasonably interfering with an individual’s work, educational purpose or status” or “creating an intimidating, hostile or offensive environment.”

The Third Circuit found Temple’s policy facially overbroad because it failed to include any requirement that the allegedly harassing expressive conduct be “severe, pervasive, and objectively offensive” — the exacting standard for peer-on-peer harassment in the educational context established by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Lacking these threshold requirements, the court found the policy “provide[d] no shelter for core protected speech” and left students who wished to discuss “a broad range of social issues” –  for example, the role of women in military combat operations — at risk of punishment if their peers found their viewpoint “offensive.” Under Temple’s policy, the court reasoned, any “gender-motivated” commentary that another student found offensive was potentially grounds for punishment.

DeJohn was a landmark case because it was a clear pronouncement from an appellate court that the First Amendment rights of public college students can’t be subsumed or compromised by a public college’s harassment policy. While public colleges are legally required under Titles VI and IX of the Civil Rights Act of 1964 to prohibit harassment on the basis of gender, race, color, and national origin, they cannot do so in a way that infringes upon students’ right to free speech. Truly harassing conduct, of course, isn’t protected speech. But as the Supreme Court held in Davis, speech only loses protection and becomes actionable harassment in the educational context when it is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. at 633.

That’s a tough standard — and for good reason. It requires the alleged “harassment” to be more than just disagreeable, tasteless, offensive, or nasty speech. In our liberal democracy, no citizen enjoys a “right not to be offended” — and neither do students at public college campuses. However much public colleges might like to grant their students this illusory, illiberal and infantilizing right, they have no authority to circumvent the First Amendment. In 2003, the Department of Education’s Office for Civil Rights, the federal office responsible for enforcing Titles VI and IX on campus, sent an open letter to college and university presidents across the country making clear  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.”

Case closed, right? Amazingly, no. Over 70% of public colleges across the country continue to maintain unconstitutional speech codes — that is, policies that restrict speech that would be protected off-campus. That percentage is even more staggering when one considers that for over twenty years, federal and state courts have routinely struck down speech codes on constitutional grounds, whether they were sloppily-drafted harassment policies, miniscule free speech zones, or misguided civility policies. Here’s the formidable citation string, chock-full of First Amendment goodness:

With the law on speech codes so clearly established, you’d think that presidents, general counsels, and mid-level administrators at colleges across the country would be well aware of the substantial legal risk they run by enforcing constitutionally suspect speech codes. (Think of the qualified immunity concerns!) But no; somehow, they aren’t, and speech codes remain on the books at hundreds of colleges. Despite FIRE’s best efforts to put ourselves out of business, we still have a lot of work to do.

But back to McCauley, which picks up where DeJohn left off and reinforces the fact that public college students enjoy First Amendment rights just like the rest of us.

In McCauley, the Third Circuit affirmed the lower court’s finding that the University of the Virgin Islands’ (UVI’s) “Hazing-Harassment” policy was overbroad. The policy prohibited “any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person” — and, applying DeJohn, the district court made quick work of it, finding it facially unconstitutional. But the lower court nevertheless upheld two other flawed policies — prohibiting “Conduct Which Causes Emotional Distress” and “Misbehavior at Sports Events, Concerts, and Social-Cultural Events” — and here, the Third Circuit reversed the lower court and issued a powerful defense of student speech rights in the process.

Citing DeJohn, the court held that UVI’s prohibition of conduct causing “emotional distress” unconstitutional because of its inherent and limitless subjectivity: “Every time a student speaks, she risks causing another student emotional distress.” The Third Circuit observed: