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Third Circuit to Public Colleges: Enough With the Speech Codes

By William Creeley, Special to the Legal Satyricon

The United States Court of Appeals for the Third Circuit’s decision in McCauley v. University of the Virgin Islands, issued last Wednesday, is a big win for student speech. For the second time in two years, the Third Circuit has struck down a public university’s speech code on First Amendment grounds — and that’s reason to celebrate for anyone who agrees that the “college classroom with its surrounding environs is ‘peculiarly the marketplace of ideas,'” as the Supreme Court eloquently put it in Healy v. James, 408 U.S. 169, 180 (1972) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)). As Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education (FIRE;, a non-partisan nonprofit organization dedicated to defending the First Amendment rights of college students and faculty, I can tell you that I was pretty thrilled by the outcome.

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:

Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); DeJohn v. Temple University, 537 F.3d 301, 319 (3d Cir. 2008) (invalidating university sexual harassment policy due to overbreadth); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality); 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); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring “harassment by personal vilification” policy unconstitutional); 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); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Lopez v. Candaele, No. CV 09-0995-GHK (C.D. Cal. Sept. 16, 2009) (invalidating sexual harassment policy due to overbreadth) (appeal pending); Smith v. Tarrant County College District, No. 4:09-CV-658-Y (N.D. Tex. Mar. 15, 2010) (invalidating “cosponsorship” policy due to overbreadth).

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:

The scenarios in which this prong may be implicated are endless: a religious student organization inviting an atheist to attend a group prayer meeting on campus could prompt him to seek assistance in dealing with the distress of being invited to the event; minority students may feel emotional distress when other students protest against affirmative action; a pro-life student may feel emotional distress when a pro-choice student distributes Planned Parenthood pamphlets on campus; even simple name-calling could be punished. The reason all these scenarios are plausible applications of Paragraph H is that the paragraph is not based on the speech at all. It is based on a listener’s reaction to the speech.

Without an objective requirement along the lines of the Supreme Court’s Davis standard, the Third Circuit held that UVI’s “emotional distress” policy dealt “substantial” damage to free speech on campus and thus could not stand.

The “Misbehavior at Sports Events, Concerts, and Social-Cultural Events” policy — which forbade “offensive” or “unauthorized” signs at said events — was similarly doomed. For one thing, the court reasoned, how to decide what signs are “offensive”? Such a prohibition, the court determined, was “hopelessly ambiguous and subjective.” Also: How does a student receive “authorization” for the display of a sign? The policy didn’t specify any procedure for doing so, let alone the narrow, objective, and definite standards required by licensing schemes that impact speech. As a result, the Third Circuit found that the sign policy could be used to “arbitrarily silence protected speech” and therefore violated the First Amendment.

McCauley‘s animating principle is that a “desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students.” That’s a vitally important message for college presidents, general counsels, and administrators to hear — and, if they’re smart, yet another reason to reform their codes before they’re taken to court.

Thanks very much to Professor Randazza for generously inviting me over to discuss McCauley. It probably won’t surprise anybody when I say that I could ramble on about the decision for a few thousand more words, but I won’t press my luck. Instead, those hardy Satyricon readers that are interested in learning more about the case can check out FIRE’s press release here, my colleague Erica Goldberg’s observations here, or the amicus brief FIRE submitted to the Third Circuit here. Thanks again.

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