"Ask God What Your Judgment Is": Another Speech Code Topples in Court
July 15, 2009
The Los Angeles Community College District (LACCD) didn't have to "ask God" to discover that it came out on the wrong side of a hearing in which U.S. District Judge George H. King temporarily enjoined the district from enforcing a harassment policy that banned "offensive" speech on campus—a policy so problematic that the judge has ordered it to be taken down from the district's websites while the legal process continues. LACCD's speech code came in for legal scrutiny after one of its students, Jonathan Lopez, was told to "ask God what your grade is" by Professor John Matteson after Lopez gave a speech—in a speech class—about his Christian faith. (For good measure, Matteson also allegedly called Lopez a "fascist bastard.")
With the help of Alliance Defense Fund Senior Counsel David French (formerly FIRE's president), Lopez sued the LACCD, challenging the district's unconstitutional speech code. As French reported:
[T]he Los Angeles Community College District has a rather oppressive speech code, which permits the school to punish "offensive" speech or speech that has an undefined "negative impact" on a student's academic performance (one section of the school's policies even permits punishment for mere "generalized sexist statements").
Well, it had such a code at one time, anyway. While the LACCD vigorously defended its speech code up through the oral argument on June 10, 2009, after the hearing it decided that it had in fact revoked the unconstitutional speech code in 2007. If this sudden realization seems suspect to you, you are not alone, as the judge pointed out in a deadpan footnote:
We are chagrined that defense counsel and Defendants' representative who were present at the oral argument on June 10, 2009 were apparently ignorant of the status of a policy they purported to defend. This lack of preparedness is viewed with great disfavor.
The judge's order itself is well worth a read for those interested. It cites the FIRE-related case of DeJohn v. Temple Univ. several times (DeJohn, by the way, is still waiting for Temple University to let him finish his degree) in support of the conclusion that a trial is likely to find that LACCD's policy unlawfully restricts "constitutionally protected speech that is merely offensive to some listeners, such as discussions of religion, homosexual relations and marriage, sexual morality and freedom, polygamy, or even gender politics and policies." The judge goes on to point out that "[w]hile it may be desirable to promote harmony and civility, these values cannot be enforced at the expense of protected speech under the First Amendment."
The LACCD has not decided whether it will accept or appeal the ruling. Any appeal, though, would face a very steep uphill battle, considering this ruling and the weight of precedent. Schools including Shippensburg University, Texas Tech, Citrus College, SUNY Brockport, and San Francisco State have all dispensed with their speech codes after legal action. Let's hope the LACCD joins these institutions and permanently consigns its speech code to the scrap heap.